When adoption without parental consent breaches human rights

OCTOBER 1, 2013 BY MARTIN DOWNS

Re B-S (Children) [2013] EWCA Civ 1146 – Read judgment

is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (see comment by Rosalind English here)

It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.

The Family courts have been bracing themselves for this Judgment since McFarlane LJ gave permission to appeal on 14 June 2013 (Re B-S (Children) [2013] EWCA Civ 813) and deployed the phrase audit to describe the kind of scrutiny of human rights issues required in public law family cases since In re B. As anticipated the Judgment goes beyond the issue for which appeal was given, namely whether the test for permission to oppose an adoption order complies with Article 8. Unusually, this post concerns that part of the Judgment (which is arguably about 60% of the Judgment) which is not about the point in contest in the case but which is, nevertheless, likely to have the widest ramifications.

The Judgment expresses concern about, the recurrent inadequacy of the analysis and reasoning placed before Courts in support of adoption by Children’s Guardians and Local Authorities but also, “in too many judgments.” With reference to the anodyne and inadequate material served up as analysis in many such cases it adds, “This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.” Continue reading →