The Relevant Law
68.A court may not make a care or supervision order unless satisfied that the threshold as set out in section 31(2) of the Children Act 1989 is crossed. The burden lies on the local authority to prove the allegations it makes. The standard of proof is the civil standard and thus on the simple balance of probabilities. The starting point and, indeed, the heart of the welfare analysis in the checklist is set out in section 1(3) of the 1989 Act, in cases where adoption is not contemplated and the checklist in section 1(4) of the 2002 Act where adoption is one of the options sought. Where a case is difficult on the facts or finely balanced, Baroness Hale (as she was) provided clear judicial encouragement to address each of the factors in the welfare checklist, in order to ensure that no particular feature of the case is given more weight than it can bear: Re G (Children) [2006] UKHL 43 at paragraph 40. 69.When determining these issues, the welfare of the child with whom the court is concerned must be the court's paramount consideration. In cases involving adoption, that is the child's welfare throughout his life. The court should have regard to the general principle that delay in determining the issues is likely to prejudice the welfare of the child. The court should make no order in respect of a child, lest it considers that to make an order would be better for the child than to make no order at all.70.The court must also take into account the Court of Appeal's judgment in the case of Re B-S (Children) [2013] EWCA Civ 1146. There are three points that were emphasised in Re B-S. First, although the children's interest are paramount, the court must never lose sight of the fact that the children's interests ordinarily include being brought up by the child's natural family, unless the overriding requirement to the child's welfare makes that not possible. Second, the court must consider all the realistic options before making a decision. Thirdly, the court's assessment of the parents' ability to discharge his or her responsibilities towards a child must take into account the proper assistance which the local authority can and should offer. 71.The court must have proper evidence to support a care plan and must explain any decision in a reasoned manner. The court is not confined to those matters which the local authority seeks to prove but any facts that a judge finds are true must be securely founded in evidence. The fairness of the fact-finding process must not be compromised.72.Within this context, reasonable and realistic options mean options which are genuine possibilities and not theoretical outcomes. In terms of this process, in approaching the realistic options in a case, the court must consider the merits and disadvantages of each realistic option and compare in a holistic way that option with all the other realistic options, having proper regard to the merits and disadvantages of those other options. It is not appropriate to approach this process in a linear manner by removing options sequentially.73.The final stage is to cross-reference the suggested course indicated by the welfare analysis with the test of proportionality. The principles of proportionality in accordance with Article 8 of the European Convention of Human Rights and Fundamental Freedoms are engaged and must be analysed alongside the welfare checklist. The court must have regard to the Article 6 and Article 8 ECHR rights of all parties and must be satisfied that any interference with the Article 8 rights of the parties is in accordance with the law, necessary and proportionate. In the event the Article 8 rights of the parents conflict with the Article 8 rights of the child, then it is the child's rights that must be given priority. A care order represents a drastic curtailment of the rights of the parents under Article 8, which can only be justified by pressing concerns for the child's welfare. This is, however, not an absolute right and the court representing the State are in certain situations is allowed to interfere with that right, but such interference must be justified, necessary and proportionate.74.I can only consider making a placement order where the child is subject to a care order and the threshold criteria have been met. I must then make a further decision, and that is the consideration of whether I can properly overcome the parents' objections to making placement orders. This involves consideration of the test set out for dispensing consent under section 52(1)(b) of the Adoption and Children Act 2002, which in turn requires the consideration of the children's welfare interests under section 1 of the same Act. I will be returning to section 1 of the Act, but of course the paramount consideration must be the child's welfare throughout his life, and the key difference between the checklist under the 2002 Act and the 1989 Act is to recognise the complete severance of familial bonds.75.I may only dispense with the permission of the parents for a placement order if the child's welfare requires me to do so. The word "requires" means that it is imperative to do so, or it is demanded that I do so by the facts. In other words, there is no other realistic option which properly provides for that child’s welfare. In the words of Baroness Hale, "nothing else will do".