23 October 2013

Re C (A Child): Rearranging the Structure

Re C (A Child) involves J's future. J is a child, whose name is protected. The court had to determine whether J's grandparent should care for J or whether J should be adopted. The law recognises that to disrupt a family in this manner is distressing and it would be better if such decisions were unnecessary. When forced adoption is a possibility the court must follow strict guidelines before the order can be made. This analysis shows how the appeal court rearranged the lower court's judgment to show the proper guidelines were followed, but their following could have been explained better.

Court of Appeal (Civil Division)

[2013] EWCA Civ 1257

18 October 2013

Re: C (A Child)

Lords Justices McFarlane, Floyd, and Patten

(The earlier judgment was delivered by Atkins J)

1. The Appeal

Courts must sometimes decide whether to order a child's adoption. Such decisions raise concerns, enshrined in the Children Act 1989 (CA 1989) s 1. This statute is engaged in Re C because the proposed adoption order affects J's upbringing (s 1(1)(a)). Further, there is an alternative 'section 8 order' available--under which the court could have arranged for J to live with a grandparent rather than J's current foster parents--which demands that the s 1(3) criteria are regarded.

Adoption cases engage another statute, too, the Adoption and Children Act 2002 (ACA). Its first section lists criteria more specific to adoption decisions. Both statutes hold the child's welfare as the paramount concern. But the ACA adds 'throughout his [or her] life' to this because adoption may affect a child more than a residence order (ACA s 1(2) and CA 1989 s 8(1)).

The problem arose in Re C because the judge did not show clearly that both statutes were fully considered. If the judge only considered the CA 1989, the decision to force an adoption would not meet the proper--the ACA's--threshold.

McFarlane LJ cites himself in the earlier Re G (A Child) [2013] EWCA Civ 965 decision to explain both the above Acts require 'global, holistic evaluation' (at [43]–[44], citing Re G [49]–[51]): in Re C McFarlane LJ held that Atkins J's decision in the County Court fully and properly considered those demanding criteria. McFarlane LJ said Atkins J 'plainly focussed on long-term, whole life planning (…)' (at [32] (c)). Therefore, Atkins J's decision comprised the necessary legal elements and must be upheld; the appeal was therefore dismissed.

It is sensible to analyse some details in the process with which McFarlane LJ proved Atkins J came to the proper decision.

2. To Help Persuade the Reader…

I begin with a quote to restate an important point above:
[t]he factors relied upon to rule (…) out [J's living with a grandparent] are long-term in nature and, [McFarlane LJ was] satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002 s 1 (at [32] (b)).
This shows the problem with Atkins J's reasoning is his timing. Atkins J considered the grandparent's ability to look after J. That ability is part of the necessary checklist to legitimise a care and residence order under CA 1989 (s 1(3)(f)). But that checklist does not prescribe a 'focus upon the whole life nature of an adoption decision' (at [30]). The broader requirement is prescribed by ACA s 1(4). Therefore it appears as if Atkins J did not consider ACA s 1(4) at all.

This appearance is a facade, caused by the order in which Atkins J considered the law and the facts. McFarlane LJ, then, had only to rearrange Atkins J's judgment to show that he did address the ACA. McFarlane LJ summarises the problem:
As a matter of structure [Atkins J] (…) made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with [the grandparent] or adoption by strangers[:] The judgment is ‘linear’ in form (…) (at [28]).
Floyd LJ takes this further:
The narrative of (…) [Atkins J]’s judgment certainly led me, on a first reading, to believe that he was considering only what could be said for and against each potential carer, without conducting a side by side comparison with adoption. The task for an appellate court in deciding whether the judge’s assessment of proportionality was wrong is rendered much more difficult in those circumstances (at [34]).
This shows it may be fruitful to consider narrative when structuring arguments. An audience will be familiar with narrative forms, even if they have never academically considered them: watching films and reading stories will have engendered a respect for narrative structure in most minds. Therefore it is sometimes sensible to impose that structure onto legal writing: readers may then relate better to the chosen chronology, and will require less explanation to believe the writer's affirmation that every desiderata is actually considered.1

3. Conclusion: Consider Your Writing's Structure

The judiciary in this case demonstrates an important technique in writing: if an argument can be restructured and the changes made will clarify the argument, it is a good idea to make those changes. For example: restructure your argument if doing so will clarify it. Or, change the order in which you write your premises if doing so will clarify your argument.

1 'Desiderata' are necessities or wants: pen, ink, and paper are desiderata for handwriting. The singular is 'desideratum': chicken is a desideratum in a chicken dinner.

Created: 19 October 2013. Version 1.0.

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