Adoption and the ‘nothing else will do’ test

Back in 2014 I took at a look at one of those sorry sagas which play out regularly in certain corners of the country, full of tangled lives, broken families and adoption orders. In A&B v Rotherham Metropolitan Borough Council, a child had been born to an alcoholic, drug-taking mother living in council accommodation,

She already had two children taken into care and knew the same would happen to number three. She lied to her boyfriend and social workers about the father’s identity to prevent any possibility of the child ending up with him.

The little boy was placed straight with prospective adopters and for a while the case appeared to be moving in a direction which offered real hope that he might enjoy a happier future. But fate had other ideas. After many months with his new family, the father’s 29 year old sister suddenly appeared from nowhere and told the authorities that she wanted to raise the boy alongside her own young child. She revealed the boy’s true biological father and announced that she wanted new council accommodation so she could live near her brother.

To the surprise of many, Mr Justice Holman ordered that the youngster should indeed be taken from the prospective adopters he’d spent the last 13 of his 20 months with and be sent to live with his aunt, necessitating a traumatic separation between the couple and the little boy.

A pretty sad case then, and one I argued very strongly was wrong. I tried to imagine the impact on that child of that forcible separation from the only people he’d known as his parents. It was a decision that sadly may not be described as unusual given that the law is not entirely clear.

The ruling was based on a precedent-setting case known as Re B,  where that much discussed phrase “nothing else would do” was first coined. Adoption by the couple in question was regarded (wrongly as it turns out) to be only appropriate when nothing else was available.

A sad and traumatic outcome and  last week a different but very similar case brought it back to mind.

W (A Child) concerned a girl born in May 2014 . In the Court of Appeal Lord Justice McFarlane noted at the beginning of a judgement which is truly profound in every respect, and one I recommend to all practitioners:

“Neither of her parents, who are unmarried, were, as a result of an unfortunate combination of low intellect and drug abuse, able to look after her.”

Social workers began care proceedings on the day of her birth. Neither parent took much of an interest in the process and ‘A’ was duly placed for adoption by the local authority.

Efforts to find other family members who might be able to look after the baby were thwarted by the refusal of the parents to cooperate with social workers, leaving them unable to trace the father’s family.

By the end of 2014, A was living with prospective adopters, referred to in the judgement as ‘Mr and Mrs X’. She has remained with them ever since and in April last year they applied to formally adopt her.

Not long afterwards, A’s biological parents had a second child. Social workers again began a search for extended family members who might be able to look after the new baby while the parents continued their wayward lifestyles. This time they were successful, finding the father’s parents. The couple were promptly informed that they had not one but two grandchildren.

They duly threw the proverbial spanner into the works and announced that they wished to take on the care of A themselves. They applied for permission to formally oppose the adoption application made by Mr and Mrs X, and to look after A under a special guardianship or child arrangements order.

They were granted permission to do so. Meanwhile, in April this year, the mother had a third child with the same partner, making all three full siblings. The younger child, ‘K’, was placed with a sister of the father on an interim care order, while the middle sibling, ‘J’, was placed with the grandparents under a long term special guardianship order.

Lord Justice McFarlane explained:

“All the indications are that these two children, J and K, will find a permanent home in the paternal family with their respective carers.”

Meanwhile A’s situation came before Mr Justice Bodey. Mr and Mrs X had applied to adopt her, while her grandparents, by contrast, hoped to become special guardians to the little girl.

The Judge, who did not have the most thorough of reports before him, ruled in favour of the grandparents and dismissed the adoption application – thereby raising the possibility of another wrenching separation between a young child and the devoted carers with whom she has spent much of her short life. By that point A had passed her second birthday and had been with the adoptive couple for a full 17 months. No great attention was paid to the strength of the child’s attachment to the only people she knew as family, or to the impact a rupture might have on her. Instead the focus was placed on her entitlement to live with her blood family and on the fact that this alternative to adoption was available to her, a ‘something’ instead of a ‘nothing’.

But His Lordship noted the huge importance of the little girl’s bond with the prospective adopters:

“All the evidence was to the effect that Mr and Mrs X, as they were entitled and expected to do, had fully committed themselves to becoming “forever” parents to A and that they had succeeded in establishing a firm and sound bond with her so that she was seen to be thriving in their care as a bright and busy 2 year old girl.”

I suspect few were surprised when Mrs and Mrs X launched the appeal which came before Lord Justice McFarlane.

One of their key arguments was:

“To allow an application to prevent an adoption where a child has spent sufficient time with her adoptive family that she views them as her only and permanent family is contrary to public policy and in breach of the human rights of the child and the adoptive parents.”

It’s that adoptive family that must have the impact of a potential breach assessed, as opposed to blood relatives that the child has in fact never met.

And the appeal was successful in part. The Court of Appeal has now taken the adoptive parents and the relationship they have with the child more fully into the equation and ruled in their favour. As a result the previous ruling will be set aside and the case will be reheard with expert analysis of the attachment/ rupture impact on the child.

As Lord Justice Macfarlane made clear:

“In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered.”

And what did His Lordship make of that all  important ‘nothing else will do’ legal test which seems to have stuck in everyone’s minds? Family judges factor it into their judgements in order to acknowledge the drastic, life-changing nature of adoption. It  seems to have completely coloured the views of the social worker and guardian in this and the Rotherham case and who knows how many others. As His Lordship notes however, this well-intentioned phrase can become meaningless, even “dangerous”, if allowed to outweigh all other matters.

“The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons.”

In other words: the phrase is not recited on its own like a mantra, but rather in the context of a full analysis of all the welfare issues involved. Only when all those have been fully considered and weighed up should the phrase come into play.

Contested adoption is a very difficult matter indeed for all involved. You can understand the grandparents wanting to take on care of their granddaughter – who wouldn’t sympathise with that? – but to remove her from the people she thinks are her parents would be traumatic at this stage and such a rupture could have a lifelong impact on her mental and emotional health.

As Lord Justice McFarlane observed, it is high time that family law practitioners as a whole moved towards a more nuanced understanding of the ‘nothing else will do’ test. It must be applied in the full context of each case, the unique circumstances at play, and no longer be treated like a rigid rule. Who knows how many other children have been profoundly affected by misunderstandings of the Court’s original intention and will suffer all their lives as a result?

The judgement W (A Child) is available here.