‘Nothing Else Will Do’

nothing-else-will-do-2Lord Justice Macfarlane has given a terrific keynote address on the matter of ‘Nothing Else Will Do’. Some extracts from the speech below but do please make time to read the full speech: here


[…] ‘the need for there to be an evaluation both of Welfare and of Proportionality has for many years been, or should have been, at the centre of each and every adoption decision made about a child under our law. That this is so should not be surprising. Welfare and Proportionality are not two distinct or incompatible concepts; they are in reality two sides of the same coin. If it is not necessary to protect a child by removing her permanently in fact and in law from her birth family and grafting her into another family by adoption, it is highly unlikely that it will otherwise be in her best interests to do so.

[…] At the risk of stretching my metaphor too far, the law is, and this should always have been clear, that for there to have been a successful voyage to the Port of Adoption both vessels, Welfare and Proportionality, must have reached the port and be firmly tied up alongside’.

[…] The court in Re B-S expressed real concern about the ‘recurrent inadequacy of analysis and reasoning’ put forward in support of adoption by local authorities, guardians and, on occasions, judges. Two ‘essentials’ for every adoption case were identified: ‘proper evidence’ and ‘adequately reasoned judgments’. The point made in relation to each was effectively the same. What is required at every stage is ‘an assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options’ (Ryder LJ in Re S, K v The London Borough of Brent [2013] EWCA Civ 926) or ‘the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family’ (McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965).

[…] Put another way, if ‘nothing else will do’ means, as Baroness Hale described it, something that is ‘justified by an overriding requirement pertaining to the child’s best interests’, that question cannot be evaluated unless and until there has been a thorough analysis of the child’s welfare? How else could one evaluate it? Welfare is the paramount consideration. Once welfare is determined, where adoption is the chosen option that outcome must then be checked for proportionality and will only be justified in Art 8 terms if there is an overriding welfare ‘requirement’ (in line with s 52), that is that ‘nothing else will do’.

[…] to a degree, and by that I mean some professionals and judges in some cases, we had lost our way and there was a need for those of us in the system as a whole to be reconnected to the core principles. The facts of Re B, which I have briefly rehearsed, led two senior Lord Justices to express significant concern and unease at the proportionality at a care plan for adoption in the context of that case. That, in turn, led the Supreme Court to restate the principles but by a majority (Baroness Hale dissenting) to uphold the pro- adoption order. In doing so some of the Supreme Court Justices offered ‘nothing else will do’ as a firmly worded illustration of the impact of ECHR, Art 8 and the requirement that a highly interventionist order such as adoption will only be justified if it is necessary and proportionate’.

Please make the time to read in full – FLBA National Conference Keynote Address Lord Justice McFarlane 22nd October 2016: ‘Nothing Else Will Do’

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