The nuances of ‘nothing else will do’

Legal mantras can be useful – pithy, easy-to-remember maxims that encapsulate important principles. But as tempting as it may be to keep rolling them out in every instance, they should never become a substitute for nuance and context.

Take the ‘nothing else will do’ principle applied to adoption cases. The phrase was first used in the precedent-setting Supreme Court judgment in Re B [2013] UKSC 33. It encapsulates the key family law axiom that adoption is drastic and life-changing: children should only be parted from their families if ‘nothing else will do’.

But even the most reasonable and rational principles can become a substitute for common sense if applied inflexibly. A recent Court of Appeal judgment demonstrates this rather well.

In W (A Child) [2016] EWCA Civ 793, a girl was born to unmarried parents who could not care for her due to ‘low intellect and drug abuse’. Social workers immediately launched care proceedings and removed the girl from her parents’ care. She was eventually placed with a couple on a temporary basis but they soon applied to permanently adopt her.

Things began to get complicated when the girl’s biological parents had a second child. This time, social workers were able to track down the father’s parents and tell them they had two grandchildren. Upon hearing this news, the grandparents sought to take in both the new baby and the girl.

On the basis of the ‘nothing else will do’ principle, the initial judge ruled in favour of the grandparents as blood relatives and said the girl should live with them. By this time, she had lived with the couple seeking to adopt her for 17 months – most of her life – but the judge did not seem to regard the child’s natural and warm attachment to the couple as something which had any great importance.

The adopters were determined, however, and pursued the case to the Court of Appeal. ‘Mr and Mrs X’ argued that the girl ‘views them as her only and permanent family’ so taking her away would do more harm than good. The court agreed and remitted the case for rehearing.

Lord Justice McFarlane quite rightly pointed out that the couple had ‘fully committed themselves to becoming “forever” parents’ to the girl and had formed ‘a firm and sound bond with her’.

Here we see the dangers of a one-size-fits-all approach to anything as complex as human relationships. As McFarlane LJ said in his judgment, the ‘nothing else will do’ approach is ‘not some sort of hyperlink providing a direct route to the outcome of a case’.

Instead of a rigid and mechanical approach, social workers and family law practitioners need a very nuanced understanding of the ‘nothing else will do’ principle in the context of the overall welfare of the child. No one wants to see young children forcibly separated from carers they regard as their mother and father. That could well be a breach of both the adopters’ and the child’s right to family life.