This article was updated on 8th August 2016.
Understanding what the courts are looking for in care proceedings can be daunting and complex. Last week, the Court of Appeal ruled that social workers and a family court judge had misunderstood how the ‘nothing else will do’ concept from the landmark Re B judgment should be applied in a case involving competing adoption and special guardianship order applications.
The baby had been placed with prospective adopters because no family could be traced. The practitioners believed that when grandparents did come forward six months later, the child should be moved to live with them.
However the appeal judges stressed that there is no automatic ‘right’ or presumption towards placement with birth family and a full welfare analysis, weighing up the pros and cons of each option as set out in Re B-S, was needed. In this case, breaking the child’s attachment with the prospective adopters should have weighed as a significant factor.
The following tips to help children’s social workers prepare evidence are taken from Community Care Inform’s guide to the balance-sheet approach by Michael Jones – a barrister at Deans Court chambers in Manchester who represents both local authorities and families. The guide is based on the Re B-S and Re B judgments and the subsequent decisions which have clarified the courts’ expectations of social work evidence when care orders are sought.
Community Care Inform subscribers can read the full guide or use our Learn on your Lunch group CPD session which both offer more tips and provide examples of the kind of balance sheets social workers often submit, with commentary on how it could be improved and more comprehensive examples that reflects the guidance. You can also find case law summaries with implications for practice here.
Don’t just think of a balance sheet in terms of putting your evidence into a pros and cons table. It is the analysis and the detailed content of the evidence that is so important, rather than the use of a table. Focus on the aim of the approach which is to help professionals and, in turn, the courts to analyse and weigh up each realistic option.
For example, it is not enough to state that a factor against a child remaining with their parents is the risk of significant harm. What is the risk based on? Explain the history, the work that has been done with the family – including support offered – and their understanding of the risk of harm. Are there ways that the risks could be managed? Covering all angles means you have less to fear from cross-examination and addressing the questions that a judge might ask makes their job easier.
Providing detail of the support that has been offered in the past and could be offered in the future in any family placement is crucial to weighing up whether that placement is viable. Your analysis needs to show what support could be put in place to make an option work – and, if appropriate, why this would not be sufficient.
While there is no set requirement to refer to the European Convention on Human Rights (ECHR) article 8 rights of the children or the parents to family life, it signals to the court that you are aware of the significant human rights implications of removing a child from their birth family and the lifelong impact the decision would have.
Your analysis may indicate that all of the realistic alternatives (for example, a family or kinship care or long-term fostering placement) to adoption are not appropriate. But even if the other realistic options are not considered viable, that is not enough for a judge to conclude that adoption is in the best interests of the child. The detriments as well as the strengths of adoption need to be analysed in the social work evidence too so that everything can be weighed up holistically.