W (A Child)

Factual and Procedural Background

The case concerns a young female child ("the Child") born in May 2014 to unmarried parents who were unable to care for her due to low intellect and drug abuse. A care order was made shortly after her birth, and the Child was placed with foster carers from one day old. By December 2014, when the Child was seven months old, she was placed with prospective adopters ("Prospective Adopters") and has lived with them continuously since. The Prospective Adopters applied for an adoption order in April 2015.

In June 2015, the Child's parents had a second child, and paternal grandparents were identified and contacted for the first time. The paternal grandparents expressed a wish to care for the Child and opposed the adoption order. They applied for permission to oppose the adoption and for a Child Arrangements Order or Special Guardianship Order. The court granted permission to apply for the latter orders in December 2015.

In April 2016, a third sibling was born and placed with a paternal aunt. The second child was placed with the paternal grandparents under a Special Guardianship Order.

In April 2016, the court heard cross-applications: the Prospective Adopters sought an adoption order, and the paternal grandparents sought a Special Guardianship Order. The local authority supported the adoption application; the paternal grandparents’ application was supported by an independent social worker and the Children's Guardian. The Child's parents played no active role, though the father supported his parents’ application.

The judge dismissed the adoption application and granted the Special Guardianship Order to the paternal grandparents. The Prospective Adopters appealed, obtaining permission and a stay of the order, with the appeal heard in July 2016.

Legal Issues Presented

1. The approach to determining a child's long-term welfare once the child is fully settled in a prospective adoptive home and a viable family placement is identified late in the process.
2. The application of the Supreme Court judgment in Re B [2013] UKSC 33 ("nothing else will do") in this context.
3. Whether the individuals whose relationship with a child is to be considered under Adoption and Children Act 2002, section 1(4)(f), are limited to blood relatives or include prospective adopters.
4. Whether a judge must expressly undertake a Human Rights Act 1998 evaluation in such circumstances and identify which rights are engaged.

Arguments of the Parties

Appellants' Arguments

• Once a child has become firmly established in a prospective adoptive home, applications by natural family members to remove the child should not be contemplated as a matter of law and policy.
• Criticism of the evidence, conduct of proceedings, and judge’s welfare evaluation as being flawed and legally incorrect, particularly regarding the application of the "nothing else will do" principle.
• Submission that the judge’s welfare evaluation was fatally flawed due to errors in evidence and procedure, necessitating a re-hearing.
• Challenge to the omission of the prospective adopters from the statutory welfare checklist consideration.
• Submission that the "natural family presumption" or "right" to be brought up by natural family members does not exist and was wrongly applied by key witnesses and the judge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re B [2013] UKSC 33	Establishes the "nothing else will do" test as a necessity and proportionality standard in child welfare decisions involving adoption.	The court emphasized that "nothing else will do" must not be applied as a shortcut but as part of a full welfare evaluation; criticized the misuse of the phrase as a presumption in favor of natural family placement.
Re M'P-P (Children) [2015] EWCA Civ 584	Clarifies that prospective adopters qualify as "any other person" under ACA 2002, s 1(4)(f) whose relationship with the child must be considered.	The court held that the judge erred by excluding prospective adopters from this consideration, requiring a balanced welfare analysis including their relationship with the child.
Re B-S [2013] EWCA Civ 1146	Sets out factors relevant to leave to oppose adoption and the paramount importance of the child's welfare throughout life.	The judge selectively cited two factors favorable to the grandparents; the appellate court noted this but found the judge was aware of the full list and considered them overall.
Re H (A Child) [2015] EWCA Civ 1284	Rejects any presumption in favor of natural parents or family in public law adoption cases, emphasizing proportionality and welfare as paramount.	The court held that the "natural family presumption" is a misconception and must not influence welfare decisions; the judge erred by relying on such a presumption.
D v M (Minor: Custody Appeal) [1982] 3 All ER 897	Recognizes the importance of continuity of care and attachment in early years, cautioning against disrupting established bonds without strong reasons.	The court cited this authority to underline the significance of the child's attachment to the prospective adopters and the need to weigh this in welfare considerations.
Re O (Contact: Imposition of conditions) [1995] 2 FLR 124	Advocates a medium- and long-term view of a child’s development over short-term considerations in welfare decisions.	The judge referenced this principle to highlight the importance of considering the child's welfare over a lifetime, not just immediate consequences.

Court's Reasoning and Analysis

The court carefully examined the competing welfare interests of the Child, balancing the benefits of remaining with the Prospective Adopters, with whom she was securely attached and thriving, against the advantages of placement within her natural family, particularly the opportunity to grow up with her siblings.

The court identified significant flaws in the evidence and analysis provided by the Children's Guardian and the independent social worker, noting their erroneous reliance on a presumed "right" or presumption favoring placement with the natural family. Both failed to properly apply the statutory welfare checklist under ACA 2002, s 1(4), and did not adequately assess the Child's attachment to the Prospective Adopters or the harm likely to result from disrupting that relationship.

The judge at first instance gave weight to the grandparents’ ability to provide care and the importance of sibling relationships but failed to critically evaluate the impact of removal on the Child's established attachments. The court found the judge’s welfare analysis, although comprehensive in parts, was undermined by acceptance of flawed expert evidence and a failure to consider the reality and gravity of the harm caused by the proposed move.

The court emphasized that the phrase "nothing else will do" must be applied as part of a full and proportionate welfare evaluation and not as a presumption favoring family placements. It also stressed that prospective adopters fall within the scope of ACA 2002, s 1(4)(f) and their relationship with the child must be considered.

The court further noted the absence of an explicit Human Rights Act 1998 analysis at first instance, particularly regarding Article 8 rights, but did not find this determinative in the current appeal.

Finally, the court highlighted procedural shortcomings, including the failure to hear directly from the Prospective Adopters and the lack of detailed assessment of the Child’s individual circumstances and attachments, which detracted from the quality of the welfare evaluation.

Holding and Implications

The appeal by the Prospective Adopters is allowed. The court set aside the order granting the Special Guardianship Order to the paternal grandparents and dismissed the adoption application. The cross-applications must be re-heard by a different tribunal.

The direct effect is that the prior decision is vacated and a fresh hearing will consider the Child's welfare with proper regard to all relevant factors, including the Child's attachment to the Prospective Adopters and the viability of the natural family placement. No new legal precedent is established beyond reaffirming the correct application of existing principles regarding welfare evaluation, the "nothing else will do" test, and the inclusion of prospective adopters within the statutory welfare checklist.