The recent case of Re B-S is clearly having a significant impact on the courts approach to care proceedings, and in particular whether or not they should rigidly stick to the 26 week rule. It also seems to me that Re B-S must have an impact on the courts approach to part 25 applications for experts.
With the introduction of the ‘necessary’ test in part 25 applications, it has become much tougher to succeed in those applications. But if one looks at Re B-S, and in particular paras 25 to 28, which make reference to Lord Neurberger’s speech in Re B, it is clear that where the local authority’s care plan is for adoption, then the court is under a duty to consider all options in order to try and keep the child in the care of the birth family before making a placement order. Of course it is unlikely that on day 12 of the new PLO, that that the care plan will be for a placement order. But given the current climate where adoption is perceived as a preferable alternative to care, then it must be anticipated that this is a likely position that the local authority will take. So when making a part 25 application that may not on the face of it seem necessary – for instance where a local authority have conducted a pre birth assessment of the parents and concluded they should be ruled out, Re BS should come into play, especially if the initial assessment isn’t as thorough as Re BS indicates the quality of the local authority evidence should be in considering placement options.
It is also clear that Re B-S assists in applications for an ISW assessment of SGO applicants, even if they come forward as a late stage – as ‘the court “must” consider all the options before coming to a decision (para 27).