Crossing the Rubicon? Adoption and A & B v Rotherham Metropolitan Borough Council

Just over a year ago I wrote and presented a lecture on the (then) new case of Re B-S [2013] EWCA Civ 1146, the facts of which every family lawyer is more than familiar with. I think it’s fair to say though that the focus, from very early on, was on the ‘wider principles’ raised in the judgment. We all rather forgot about the facts; that it was an appeal against a decision to refuse leave to oppose an adoption application.

The nub of the judgment was of course, the fact that parents should have access to a ‘real remedy’ – which must mean that not only must it be possible not, just theoretical, for parents to obtain leave to oppose an adoption application, but that it must be possible for them to successfully resist adoption orders at final hearing. Recently, for what I think is the first time since Re B-S, the Court has dismissed a contested adoption application, deciding it would be positively better for a child to be placed within their birth family.

The case itself, A & B v Rotherham Metropolitan Borough Council [2014] EWFC 47 (fam) involves a pretty extraordinary set of facts, though it isn’t difficult to see how the principles could be extrapolated. The child in A and B was made the subject of (unopposed) final care and placement orders due to concerns about parental drug and alcohol misuse. The Mother asserted that her partner was the Father of the child, which was not disputed by him. The fact that both parents were white and the child appeared to be dark skinned apparently did not trouble professionals enough for them to question the Mother’s partner’s assertion that this was because his Mother was Burmese, and Burmese babies have skin which gets lighter as they get older (?!).

After the Adoption application (issued in January 2014) the real (Black Caribbean) Father came forward. The Judge found that he had not known about his child being in care until March 2014. By the time of the final hearing he accepted that he could not care for the child but put forward his sister as a carer. At the contested hearing it was accepted by everyone that if the child’s true paternity had been known the care and placement orders would not have been made and the child would be living with the paternal Aunt (who was, by then, the subject of a positive assessment). The choice for the Judge was stark; did he make an adoption order (as the Social Workers ‘on the ground’ and a Child Psychologist urged him to), or did he dismiss the application and revoke the placement order currently in force, allowing the Local Authority to place the child with the paternal Aunt under the pre-existing care order (as the ‘Higher Ups’ in the Local Authority and the Child’s Guardian said he should).

The Judge came to the conclusion that the child’s interests throughout his life were best served by no adoption order being made. He did not apply the test of ‘nothing else will do’. It was an ‘extremely painful’ decision, but not one which was reached ‘narrowly or marginally’.

Whilst you might have trouble replicating this particular set of facts in your professional life, it is worth considering the following scenarios:

1. A family member, previously unassessed during care proceedings, comes forward at adoption stage
2. A family member comes forward at adoption stage who for some reason could not care for the child during care proceedings but can now offer the child a good home
3. Or, what about a family member who comes forward late but within care proceedings. To a certain extent we can already rely on the case of Re S (A Child) [2014] EWCC B44 to extend the 26 week timetable to allow for them to be assessed, but I would suggest this case means that argument has even more force – why risk them coming forward again at a later stage?

It will be interesting to see who – if anyone – in the next few years follows Mr Justice Holman across the Rubicon.