Local Authority lawyers should grow a pair

This post contains 95 per cent of your Recommended Daily Allowance of Sarcasm and 119% of your Recommended Daily Allowance of Dopiness

 

Well, it isn’t quite put like that, but it isn’t far off.   I appreciate that for a substantial amount of my compatriots, it isn’t even biologically possible.

 

You see, it turns out that the adoption statistics are our fault.  We all knew that there was about to be a blame game  (heaven forbid that anyone should even consider whether the direction of travel might be a good thing, or a bad thing or a neutral thing before embarking on the blame exercise), but it turns out that the finger points at Local Authority lawyers, who, as I say, are going to be told to ‘grow a pair’

[Even though I speculated today that the next judicial edict would be that the LA final evidence must be written in iambic pentameter and rather than being typed, the social worker would have to sew it using cross-stitch, this rather surprised me.  “It turns out that the Bayeux Tapestry was really just contact notes”… I fully anticipate that Dallas PD will be questioning all Local Authority lawyers about JFK shortly]

 

Martin Narey, Adoption Czar  (or is it Tsar? I can never remember, but it always does remind me that the career trajectory of Czars and Tsars, both in historical leader sense and in political oversight sense hasn’t been that stellar) has given a speech at the Association of Directors of Children’s Services.

 

He is thus talking to the uber-bosses of all social workers, the capo del tutti capi of social workers.

Whilst I’m not the largest flag-waving champion of Mr Narey, and I’m unlikely to ever make his Christmas card list, I will give credit where it is due. He has put that speech up online, so that people can read it. He didn’t HAVE to do that, so good on him for doing it.

Flag is going back in the cupboard now.

 

It isn’t really surprising that he opens with a discussion about the adoption statistics. To be fair (oh, flag coming back out), if you’re the Adoption Czar and there’s a big political drive to get adoption numbers up, then when they absolutely tank, you’re BOUND to want to do something about that. If you don’t, then you’re sort of redundant. Probably literally as well as figuratively.

 

Mr Narey refers to the drop being a result of two major Court decisions, Re B and Re B-S, and reminds us all that he helped to produce a Myth-Busting document that picked up a lance and slew the dragon of misconception, so these adoption figures should recover, thanks to his intervention.

 

He talks about the number of ADM decisions for Placement Orders to be sought going down 52% last year, and he says this    (If I’m crabby here, it is only PARTLY because I can’t cut and paste from his slides and have had to type the whole thing out. Only PARTLY)

 

“But these are not as a result of the Courts rejecting Placement Order applications in vast numbers. The drop is overwhelmingly explained by a drop in Local Authority Placement Order applications. They have dropped from 1,830 to 910, a decrease of almost exactly half.

 

Unless you believe that all those adoption decisions you made last year were not in the interests of those children, I urge you to ensure that your social workers and lawyers have not lost their nerve, and the President’s exhortation that you must follow adoption when that is in the child’s best interests is followed. If current figures do not recover, then over time, we shall see adoption numbers drop back very substantially indeed.

 

I don’t think adoption can ever be suitable for other than a minority of children in care. But I think that minority is probably more than 5,000 or just 7% of the care population”

 

Well, where to start?

As an argument “Unless you believe that all those adoption decisions you made last year were not in the interests of those children”  so get out and make some more – ideally 50% more , leaves a lot to be desired. Firstly, it is an emotive appeal. Secondly, saying ‘If you think all those cases where you recommended adoption, you were right’ inexorably leads to   ‘a lot of the ones where you didn’t, you must be wrong’ is some strange use of logic that I’m not familiar with.  Of course ADMs who make a decision that adoption is the right plan for a child do so believing that this is in the best interests of the child. But why on earth should that mean that they were wrong with those that they rejected?

That’s like saying  “remember all those times you bet on Red in the casino and you won? Well, forget about the times that you bet on Red and lost, or you bet on Black and won, clearly betting on Red is the right approach. Go heavily into Red. “

Next, if you think that Local Authority lawyers have lost their nerve, then you need to get out in the trenches with us. There has NEVER been a harder time to be a Local Authority lawyer.  I don’t say this to garner sympathy (I know that many of my readers think that lawyers, and LA lawyers in particular, are the devil incarnate – they are wrong, it is just me), but it is the truth.  It is breathtakingly offensive to say that we have lost our nerve.

Nor have social workers.

 

Perhaps the Adoption Tsar doesn’t know that actually, a lawyers’ job is to give advice but take instructions. We don’t EVER say to a social worker that they can’t put forward a plan of adoption or ask the Agency Decision Maker to approve that plan. We tell them whether or not such a plan is likely to succeed in Court, and we tell them what the strong and weak points of their case is, and we give them advice on what they can do to improve the weak points and how to present their evidence in the way that the Courts now require.

What we do not do, is advise the ADM  “you should approve adoption here”  or “this isn’t an adoption case”.  Even back in the days of Adoption Panel, where a lawyer sat in the same room as the Panel when they made the decision about whether it was an adoption case or not, we didn’t get to make any representations about it or to vote.  Our role was, and still is, limited to giving advice on any legal issues that arise, not to advise the ADM on the merits or otherwise of the case.

 

Mr Narey’s argument here is presumably, theat if Local Authorities had asked the Court to make 1,830 Placement Orders after Re B-S, the Court would have made them.   (And perhaps if we’d asked for 4,000, the Court would have made them too).

 

The reason the adoption statistics dropped was because we were stupid and didn’t understand Myth-Busting !  (TM)  or because we were too timid to ask the question – social workers and Local Authority lawyers have been metaphorically teenagers who want to ask someone out but end up not being able to get a word out when we are near the subject of our affections. What Mr Narey is saying to us is “Hey, that person you like is TOTALLY into you, and they would TOTALLY say yes if you asked them to go to the pictures with you”

It is of course telling that with that 52% drop in applications for Placement Orders, I have not heard of a SINGLE case where a Judge seized of all of the facts and evidence, said to the Local Authority “I cannot believe that you are putting forward a plan that doesn’t involve adoption here, I really think that you should reconsider”  , or given judgments that say “none of the options put forward for this child are sufficient to safeguard their well-being, and I adjourn the final hearing so that matters can be reconsidered”

 

 

I think that it is interesting that whilst this speech makes great play of the President’s decision in Re R, and even quotes from it approvingly, it misses out two really major elements of Re R.

 

The first is this one:-

 

in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.’

 

[And to save you flipping back to Re B, that, precisely, is THIS

 

para 198: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.” 

para [215]:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.” ]

 

If a Judge makes a Placement Order without engaging with that test, the judgment will be deficient. If a Local Authority present their case without striving to meet that test, their evidence will be deficient.

The Court of Appeal in Re R also made it plain that all of the stipulations laid down in Re B-S about the quality of the evidence, the need for robust and rigorous child-specific analysis of all of the realistic options and the Court not proceeding in a linear manner still stand.

 

The second omission is of course,

On 11 November 2014 the National Adoption Leadership Board published Impact of Court Judgments on Adoption: What the judgments do and do not say, popularly referred to as the Re B-S myth-buster. This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.

 

I have set out before, here, what the Court do and do not say in Re R     http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back

 

As I said in that piece, the ‘myths and misconceptions’ that the Court of Appeal were slaying were the ones that nobody actually believed were right – even the lawyers advancing those claims that “Re B-S means that if the positives and negatives aren’t set out in tabular form, adoption must be rejected” didn’t actually believe what they were saying.  (It’s one of the advantages of being a lawyer, you don’t have to believe what you are saying in order to say it…)

 

Mr Narey is quite right that the Court of Appeal are clear that where the only option that will meet a child’s needs is adoption, that’s the order that should be sought, and the Court will adjudicate on it. If the social worker thinks that of all of the realistic options, adoption is the only one that can meet the child’s needs, then they can and should go to the ADM to seek approval of that plan. And likewise, if the ADM thinks that, then they can and should approve the plan. And likewise, if the Court conclude that, they can and should make the adoption order.

 

That is encapsulated by this passage

‘[44] … Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’

 

If a social worker, or an ADM think that this test is made out, then there’s no reason at all why they shouldn’t put forward a plan of adoption. It might be that when the evidence that lead them to think that is tested in the burning crucible of cross-examination, it is found wanting, but that’s how litigation works.

 

I can’t help but note that Mr Narey in his speech quotes a section of the President’s judgment from Re R  [what he doesn’t do is quote all of the bits in italics are a key part, which rather change the meaning if you ENTIRELY miss them out]

 

It is apparent, and not merely from what Miss James and Miss Johnson have told us, that there is widespread uncertainty, misunderstanding and confusion, which we urgently need to address.

[41] There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’ There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now “a shying away from permanency if at all possible” and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that “arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: “To discount a kinship carer, it seems that two negative assessments are required.” There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now “worryingly low”. Mention is made of a case where the child’s solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format.

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest.

[44] I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

 

I appreciate, space is at a premium and when you’re giving a speech you don’t necessarily want to quote great chunks of a judgment, but when you quote as selectively as this, you are turning a passage in a judgment that is saying that where really ridiculous arguments about Re B-S are being used, those are fallacies into something which suggests that Re B-S says nothing of any consequence at all.  It is just plain misleading.

 

Ignore for a moment the “nothing else will do” formulation (although, as outlined above, it is still good law, just not in the ludicrously over-literal way that the Court of Appeal were initially using it).  These are the other changes in child protection law and adoption law since Re B.

 

1. The test for an appeal Court is now whether the Judge was  “wrong” and not whether the Judge was “plainly wrong”.  That is a substantial change, and makes the risk of being appealed in a judgment notably higher.

2. The Court can no longer proceed on a linear analysis.  They MUST look at the pros and cons of each option. This is not a small thing. Prior to this decision, the process was always “look at parent, if no, then look at family member, if no then adoption is all that is left, ergo the ‘last resort’ element is satisfied, it is the last resort because there isn’t anything left”.   If a Local Authority are making a case for adoption, they have to not only show the flaws in the other options, but that the benefits of adoption outweigh the FLAWS in adoption. That requires social workers to fully engage and grapple with the benefits AND flaws of adoption both in general and for a particular child.  If the Adoption Leadership Board want to tackle a single issue, rather than Jedi-hand-waving that ‘this law hasn’t changed, you may go about your business’, training that better equips social workers to do this and proper impartial and evidence-based research about those benefits and flaws would be a damn good start.

3. The rigorous analysis and evidence required as a result in Re B-S is still required.

Let’s look specifically at the example of social work analysis on why adoption was right for a child that the Court of Appeal tore to bits in Re B-S

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

 

Prior to 2013, that wasn’t only the sort of thing that you’d see in a social work statement explaining why adoption was the right outcome for a child, it was actually one of the better ones. Prior to 2013, I’d have put that in the top 10% of attempts in a social work statement to explain the benefits of adoption.  This was an A minus attempt.

Let’s look at what the Court of Appeal said

With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

 

. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

 

I’ll say it again, because this is important. A formulation that I would have put in the top 10% of analysis that I’d been seeing pre 2013 was DESTROYED by the Court of Appeal as being completely inadequate.  An A minus attempt was given an E.   Whether or not Re B-S changed any legal tests, it certainly raised the bar massively for the standard of evidence and analysis required.

 

4. The test for leave to oppose adoption was dramatically reduced.  Prior to Re B-S, such applications were rare and also very easy to shut down. All you needed was to quote Thorpe LJ in Re W  “However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.”  and draw the Court’s attention to the facts of Re P, where parents who had gone on to have another child and keep that child, with no statutory order, hadn’t been sufficient to get them leave to oppose.   Now, the test is substantially reduced.   In particular, these two elements from Re B-S.

 

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

and

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

 

5.  As we have seen, more leave to oppose applications are being made, and more have been granted.  We also see that the Courts have given judgments in cases where adoption applications have been successfully opposed. To date, the reported cases are where a parent has been able to show that another family member could care for the child instead of prospective adopters who have had the child for 13-18 months.  Such a decision would have been unthinkable in 2012, but they are happening now.  What that means is that if a Court is being invited to make a Placement Order, and the LA are inviting the Court to do so, they have to have good, cogent evidence as to why family members are not suitable instead.  If they don’t get that exercise right first time round, then the child will pay the price when at an adoption hearing 15 months later, the Court may be removing the child from adopters and placing with those family members.

 

 

All of those things, and Lady Hale’s formulation are real things.  It does nobody any favours to ‘jedi-hand-wave’ them out of existence, particularly by chopping up a quote from a judgment so that a person reading it would think that the Court of Appeal had said:-

There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’… those impressions are based on myths and misconceptions  

 

when those three little dots are missing out all of the actual substance.

 

Parliament has created a statutory power of adoption. The tests have been laid down in the Act. The Courts have interpreted how those tests are to be delivered in practice.  The Lady Hale formulation in Re B is the test that the Courts will be working towards. To pretend otherwise is misleading.

It does remain the case that where a Local Authority can show that none of the other options before the Court can meet the child’s needs, adoption is an option that they can legitimately pursue.

 

It’s disengenous to pretend that people didn’t understand that.  If social workers and lawyers and ADMs hadn’t grasped that, then there would have been NO applications for Placement Orders.  The numbers went down because the difficulty in obtaining a Placement Order from the Court went up.

 

 

If the social workers, lawyers and ADMs had ‘held their nerve’ in 2013 and made the same number of Placement Order applications, then the Court would have rejected them in huge numbers.  Maybe they all should have done, and let it become the Court’s problem.

Two years later, the same might not still be the case.  Firstly, the over-literal over-prescriptive appeals seem to have died down a bit. Secondly, social workers have got more used to the rigorous standards that are required in terms of their evidence and are better equipped to present their evidence to those standards.