‘Where nothing else will do’: judicial approaches to adoption in England and Wales

Abstract

The judicial approach to making an adoption order where birth parents do not give their consent suddenly changed after a UK Supreme Court judgement in mid-2013, which examined the position in the light of the Human Rights Act 1998 – Re B [2013] UKSC 33. This article argues that this case did not set a higher threshold for such an order to be made but confirmed existing domestic and European human rights law. However, the unintended consequences of the judgement were an opportunity for the judiciary to take issue with government policy to increase the rate of adoption and with recent family justice reforms, which have constrained judicial oversight of care proceedings. An unprecedented rate of contested litigation, based on perceived shortcomings in social work assessments and judgements in the lower courts, has caused uncertainty and delays in planning for children, with a slowing in the rate of children being adopted, although with little evidence of any associated benefits for birth parents. It is concluded that the confusion caused for potential adopters and practitioners needs to be resolved, so that timely decision-making for children can be prioritised.