When adoption without parental consent breaches human rights: implications ofRe B-S (Children)[2013] EWCA Civ 963 on decision making and permanency planning for children

Abstract

The Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 delivered a judgment on 17 September 2013 that has led to confusion and uncertainty in adoption cases specifically, but public law cases more generally. In his judgment, the President of the Family Division, Sir James Munby, highlighted the need for a greater degree of analysis and a weighing up of all the options for the child, including adoption. Significantly, the President stated that adoption without parental consent is an extremely draconian step, and as an option should not therefore be based on resource constraints if the most appropriate option for the child is to remain living within his or her own family with support.

The authors are concerned that following the decision in Re B-S the courts appear to be more willing to grant leave to appeal an adoption order, especially where parents are not legally represented. Members of the judiciary may be concerned to uphold the Article 6 rights of parents, but this must be carefully balanced against the welfare of the child.

Furthermore, following the decision in Re B-S we are seeing evidence in unreported cases of social workers being heavily challenged on their oral evidence in court. The judgment in this case will inevitably lead to uncertainty amongst professionals who are already working under considerable strain and these may result in further delay for children; this is ironic given the rhetoric of recent reform of family justice is premised upon the importance of the timetable for the child.