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Court of Appeal criticise Judge for insufficient analysis of the placement options

 

In re P (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/3.html

The Court of Appeal conclude that a Judge who made a Placement Order (thus authorising a child to be placed for adoption) had not conducted a sufficiently robust analysis of the relative merits of the placement options before making that decision.  The Judge had set out in the judgment what he was required to do, but the Court of Appeal say that he didn’t actually do it.

That’s been an issue I’ve been concerned about for quite a while – I read all of the published judgments, and it seems to me that the complaints that the Court of Appeal made in Re B-S about ‘adoption is the last resort’ being a stock phrase of judicial window-dressing, a remark to be thrown into a judgment but with no real engagement with the principle and philosophy has just been replaced by Judges inserting into their judgments huge swathes of case-law that tell them what they must do and what they must consider (including huge swathes of Re B-S) but there’s not often evidence when I read these judgments of the Judge going on to actually apply these principles. It seems to be considered sufficient for the Judge to simply tell everyone that they know the relevant portions of the caselaw rather than actually following those stipulations.

So in part, I’m rather glad of this case. It puts down that marker.

  1. While ostensibly aware of the need to adopt a ‘holistic’ approach to the evaluation of the options for P (and the guidance offered by Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46]), we are not convinced that Judge Ansell delivered on his intentions. It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach) [2014] (above)) “essential” that a judge provides an adequately reasoned judgment at the conclusion of a case such as this. We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), or a proportionality evaluation. In this respect, Mr. Horrocks makes good his submission.
  2. There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an ‘old-fashioned welfare balancing exercise’ (Re F [2015] EWCA Civ 882 at [48]); the term ‘holistic’ does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a ‘balance sheet’ of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile. What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.
  3. In this case, as in Re R (A Child) (Adoption: Judicial Approach) [2014], Judge Ansell was faced with an essentially binary decision; either P was restored to her mother’s care, or she was adopted. There was no realistic alternative. The fact that the judge considered the merits of the mother’s position, properly evaluating, we are satisfied, her strengths and weaknesses, but ruling her out as a long-term carer for P before moving on to consider the other option of adoption is ‘linear’ thinking, both in form and substance (see Re R [18]).
  4. There was sufficient evidence before Judge Ansell for him to conclude that the mother was indeed a realistic option as a long-term carer for P (giving ‘realistic’ its ordinary English meaning: Re Y (Children) [2014] EWCA Civ 1553). After all, her aspirations to care for P throughout her childhood had attracted some support during the proceedings from both the Family Centre and (until after the hearing had started) P’s Guardian. There were many positives of her parenting, as the Judge himself recognised. This was not one of those rare cases identified in North Yorkshire County Council v B [2008] 1 FLR 1645, and discussed by Sir James Munby P in Re R at [67], in which it would have been permissible for a court, albeit acting cautiously, to rule out a parent as a potential option (even in some cases before the final hearing itself) before going on to consider other options. By his judgment (both in substance and structure), Judge Ansell gives the impression that this is precisely what he did.
  5. That said, the judge conducted a sufficiently sound analysis of the pros and cons of the mother’s potential as a long-term carer of P; he was, after all, entitled to rely on the fact that the expert and professional evidence in this case all pointed against rehabilitation of P with her mother – namely, the final evidence from the Family Centre, the social worker’s assessments and the final recommendations of Mr. Abrahams. At least two of the professional witnesses (one of the social workers and the Children’s Guardian) had known the mother from the earlier proceedings, and were able to bring to this case long-standing knowledge of her care and parental capabilities. Indeed, it is significant to us that the experienced Guardian, who had represented P’s older half-siblings in the 2012/2013 proceedings, had initially supported the mother in her endeavour to care for P, but in the final analysis, had found himself unable to do so, having heard the same compelling oral evidence as the judge. Mr. Abrahams had concluded that P would not be safe in the care of the mother, a view on which the Judge was entitled to, and did, place significant reliance.
  6. However, that was only part of the required holistic evaluation. The Judge then needed to go on to consider the issue of adoption, and place that option up against the case for parental long-term care.(6) The outcome of adoption:
  7. As indicated in the previous section, having conducted a fair review of the mother’s strengths and weaknesses, and considered her potential as a long-term carer for P, the judge should, in our judgment, have gone on to conduct an internal analysis of the pros and cons of adoption, and then place that analysis up against his conclusions on the mother. In failing to do this, Mr. Horrocks has made good his complaint under this ground of appeal.

 

However, the Court of Appeal in this case go on to say that there is sufficient material before them for THEM to go on to conduct that analysis themselves, rather than send the case back for re-hearing. That’s an approach that is legally and properly available to them and they direct themselves to the relevant caselaw.

My querying eyebrow is that the Court of Appeal therefore consider that THIS is sufficient as an analysis of placement options, as it is the one that they themselves provide and rely upon

 

  1. In reaching a view about this, we have considered carefully the evidence from the senior social worker in the adoption team, the final statement of the key social worker, the Family Centre reports, the Placement Order report, the mother’s written evidence and the Guardian’s reports, all of which (save that from the mother) was evidence accepted by the judge. We consider that we have sufficient evidence to undertake the analysis ourselves.
  2. P is an eighteen-month old infant; she is in good health, though has sickle cell traits. She has the ordinary needs for “predictable, reliable, consistent” parenting from a parent who is “available, responsive and sensitive” (per Placement Order report). She has, in the judge’s finding, a warm relationship with her mother. We acknowledge, as indeed the social workers acknowledge, that if P were to express her feelings, she would almost certainly wish to be cared for by her mother, assisted by her father, provided this was in her best interests. This would reflect well her dual-heritage ethnicity, and would most completely respect her rights to family life; she would probably be able to establish a modest relationship with five of her six half-siblings, through her mother’s periodic contact with them.
  3. By contrast, adoption will sever all legal and emotional ties with the mother and she will, in all probability, lose any contact with her half-siblings; it is thought that any ongoing direct family contact could potentially destabilise any placement. P will nonetheless be claimed as a child in a new family. It is not envisaged that there will be difficulty in finding a suitable placement for P for adoption, and it is believed that this could be done within 3-6 months of a final placement order. The “strict” test for severing the relationship between parent and child by way of adoption is now clearly defined; it will be satisfied only in “exceptional circumstances” and:

    “where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do” Baroness Hale Re B [198].

  4. We have much in mind that the court’s paramount consideration, in accordance with section 1(2) of the ACA 2002, is P’s welfare “throughout [her] life.” We are of course acutely conscious of the effect on P of ceasing to be a member of her family. But having considered the case carefully, and having placed the options alongside each other, we share the judge’s view, essentially for the reasons he gave, that P’s best interests would not be protected, let alone enhanced, in the care of her mother. We are persuaded that adoption was indeed the only outcome which would meet P’s long term emotional and physical needs; it was, in the final analysis, the only realistic option. The judge was therefore entitled to conclude, albeit he expressed it with incautious brevity, that the mother’s consent to adoption was “required”.
  5. Notwithstanding the exceptionality of this outcome, and while acknowledging that the judgment is light on analysis of the competing options, and far from ‘holistic’ as McFarlane LJ used the term in Re G, the outcome was in our view sufficiently clear that we feel able to substitute our own conclusion.

 

 

It seems rather superficial and sketchy to me – it seems rather like the sort of analysis that the Court of Appeal railed against in Re B-S and all of those other cases. But now, rather than simply carping about what is deficient, we have a concrete example of what the Court of Appeal have ruled is SUFFICIENT.   And it seems, to use vernacular, a bit weaksauce.

If I got that as the social worker’s analysis of placement options, I’d have been sending it back to ask for substantial improvements. I would have been telling them that it doesn’t comply with the guidelines laid down by Re B-S. It seems exactly the sort of analysis that the Court of Appeal described as being anodyne and inadequate. It is barely longer than the example that the Court of Appeal skewered in Re B-S.

And therefore, I am puzzled.

 

The Court of Appeal did express some sympathy for the Judge in the case

In focus in this appeal is a judgment which gives every appearance of being prepared under pressure of time, in a busy court, following directly from submissions at the conclusion of a five-day contested hearing. The result is, as all parties in this appeal have acknowledged to a greater or lesser extent, not altogether satisfactory – a matter of concern to us given that we have concluded that the judge was right for the additional reasons we shall describe; the outcome could not be more momentous for this mother and this child. The appeal represents an example of an all too common occurrence, namely the difficulty of finding time in a busy list adequately to explain a decision based on a series of multi factorial elements. The inevitable temptation for a judge who is seeking to be compassionate and also not to interfere with the other business of the court, is to try and do too much in the time available, when it would be better to take additional time.

 

The judgment was 30 pages long, so not exactly a half-assed rush job. What emerges from the Court of Appeal judgment was the sense that by the time the Judge reached the meat of the case, the real area where the judgment needs to shine – the analysis of placement options and reasons for conclusions, it had rather run out of steam.

 

The judgment finally accelerates to a rather abrupt discussion of the orders; in a concise concluding section the judge expressed the hope that he had “sufficiently analysed the options in this case”; he indicated that, “whether it be a holistic or linear approach”, he rejected the contention that either of these parents could safely protect P. He regarded himself as “driven to the only conclusion” that could be reached, namely a “care order in the welfare of the child must be made”. Without discussing the care plan as such, he reflected that a care order would “involve” a placement order and that required him “to dispense with the parental consent if the welfare of the child requires that consent to be dispensed with”. Without further reflection, he made those orders “in the interests of this child.”

Important case regarding learning difficulties

 

It is a Presidential pronouncement, and a long one. So expect it to be cascaded to all Judges and Courts in the next few days.

To be honest, a case that makes the President say this:-

 

  • This is by some margin the most difficult and unusual care case I have ever had to try.

 

is going to be worth a read. It is really difficult.  Just as when many of us read Re B, we felt that the circumstances described by the Court of Appeal and then the Supreme Court didn’t seem to justify a finding that threshold was met and that adoption was the correct outcome, this one made me feel deeply uncomfortable. I don’t think that I agree with the eventual conclusion, though to have decided the case otherwise would have caused a huge shift in the legal approach to such cases.

 

I’m afraid that it is long. And I am also afraid that in my attempts to condense what is a very long judgment into manageable size, some of the nuance and detail will be lost. There is no real substitute for reading the whole thing.

Re D (A child) (No 3) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/1.html

 

This case has appeared in the blog many times.  It is the one where a child was placed at home with parents, who had some learning difficulties, under a Care Order in 2012. The Local Authority then removed that child and placed the child in foster care. So initially it was key case law about the principles in law that apply to a removal of a child under a full Care Order. The LA then decided that their plan was adoption and made an application for a Placement Order. It then took many months of arguing about the lack of availability of legal aid for the parents (and lawyers not only working for free but signing indemnities that if cost orders were made against the Official Solicitor that they would guarantee to pay them out of their own pocket. Doesn’t quite fit with the conspiracy narrative that parents lawyers don’t try…)

It is the plaintive case where the mother cried out during one hearing that nobody seemed to be talking about her child at all, that all of the attention was on regulations and LASPO and fripperies, when what was surely important was the child. Quite so.

Anyway, this is the decision about whether the child should live with the parents, or be made subject to a Placement Order and hence go on to be adopted.

It raises some really challenging philosophical questions – and not ones of idle curiousity but ones that go to the heart of how such cases should be run.

 

  1. Were the things that happened to this child a result of parental deficiency, or were they frankly things that could happen to any child and any parent, but they were pathologised because of the parents known issues?
  2.  Were the failings here attributable to the parents, or the support provided?
  3. Is there such a thing in law as reparative care, or is insisting that a child needs higher than good enough care simply a social engineering argument in disguise (topical, given the proposed reforms to adoption)
  4. Is a parent with learning difficulties treated differently (or discriminated against) than a parent with physical disabilities?
  5. Is a plan that involves extensive professional support and carers really harmful to a child, or is it the sort of thing that happens all the time with children whose parents are very rich?

 

I’m going to steal the arguments in relation to each of these from the submissions of Deidre Fottrell QC  and Sarah Morgan QC contained in the judgment, because the day that I can write something that is better than the way Deidre or Sarah puts it is the day that I’ll be closing up the blog to spend quality time with my Pulitzer Prize.

 

 

  • Ms Fottrell, who it must be remembered acts on behalf of the father but also takes instructions from the Official Solicitor, expresses their deep concerns about what, with every justification, she calls the “notable deficit” in the support being given to the family by the local authority in relation to its failure to provide the father with the adult support services to which, as it eventually conceded, the father was entitled. As she submits, this impacted on the family in two ways: first, the father has not had the support he required, and thus continued to struggle with day to day tasks for himself; and, secondly, this meant that the mother was overburdened by being required to support him – which must have impacted on her ability to look after D. This is not, Ms Fottrell says, a small point, for it undermines the local authority’s case that the parents were fully supported when D was living at home. It is not enough for the local authority to assert that it was committed to D remaining at home and that it provided support. The key issues, she says, are (i) whether the local authority offered the right support and (ii) whether it was entitled to expect, as it did, that the support could be reduced and eventually withdrawn. Her answer to each is clear: No.
  • Ms Fottrell identifies what she suggests are two fundamental flaws at the heart of the local authority’s case. First, she says, there is an inherent contradiction given that the nature of the parents’ learning disabilities is, as she puts it, inherent and unchanging, a fact known to everyone when the original order was made: so the need for ongoing support on an indefinite basis underpinned the care plan approved the court in November 2012. It is therefore, she submits, unfortunate and somewhat harsh for the local authority and the guardian now to be saying that the parents have failed to ‘improve’ their parenting. She suggests that this goes to demonstrate either that the support envisaged was not provided to the extent required or that the local authority’s expectations of the parents were either unclear or unrealistic.
  • Secondly, she challenges the assertion that D needs better than good enough parenting: it is, she says, circular and dangerous and runs the risk of a parent with learning difficulties being held to a different and more onerous standard. It would, she suggests, exclude a parent with learning difficulties who requires support from being able to parent their child if the child also has learning difficulties. She points to what Gillen J said in Re G and A and observes, correctly, that the court has to comply with both Article 8 and Article 14 of the Convention. It cannot be right, she says, for the court to sanction a local authority’s intervention in the family life of a parent with disability in a way which would be discriminatory under Article 14. Moreover, as she points out, there is a positive obligation on the State under Article 8 and that, she submits, in a case such as this, imposes a broad obligation to provide such support as will enable the child to remain with his parents.
  • More generally, Ms Fottrell aligns herself with the submissions put forward on behalf of the mother, to which I now turn. Before doing so, I should mention two other important points made by Ms Fottrell. She challenges the assertion that the parents need support round the clock – a proposition, she submits, not made out on the evidence. And she points out that D has never suffered any physical injuries. Insofar as there are said to have been what can be characterised as ‘near misses’, she poses the question: Are these the kind of incidents, familiar to every parent, where the reaction is ‘there but by the grace of God …? Or were they, in truth, disasters waiting to happen where by some miracle nothing did happen?
  • In conclusion, Ms Fottrell submits that, with the right package of extensive support provided by a combination of Mrs P and the professionals, the parents will be able to care for D safely and appropriately, as the court had intended in November 2012

 

 

  • Ms Morgan and Ms Sprinz acknowledge that the mother has had her difficulties with MB and the foster carers and they do not shy away from some of the things the mother has said about professionals. But they urge me to remember the context. What after all is a parent likely to think about the social worker who has advocated the removal of her child or about the foster carer who is doing what the parent herself wants to do? And they urge me to accept TG’s appraisal of the mother as someone who can – and, they say, will – work with professionals if they are there to assist, support and advise, rather than to assess and monitor, and who treat her as an adult and a mother rather than, as she perceived it, as if she is “stupid.”
  • Moving to the heart of the case, Ms Morgan and Ms Sprinz challenge the assertion that the level of support the parents need carries with it the danger that people other than the parents will in truth be bringing D up and acting as his parents. There are, they suggest, two aspects to this: Is this really the case? And, even if it is, to what extent does it matter? In relation to the second point they caution against the risk of making a value judgment (as opposed to coming to a judgment) if it is, in truth, based upon no more than the circumstances in which the particular parent – these parents – come to need help. They submit that what matters is that the child has a clear and secure knowledge of who his or her parents are. The fact that some parents either need or choose to have assistance with the way in which their children are brought up does not, they say, alter that.
  • Here, as they rightly say, the parents need help. But how, they ask, do these parents, with their particular difficulties, differ from the parent physically disabled by Thalidomide, or the parent who is blind, or a parent with a brain injury as distinct from a learning disability, who may not be able to see or to react quickly to some risk to which their child is exposed. What such parents need, they submit, is that a reasonable adjustment is made for the deficits in their parenting which arise from their own inherent difficulties rather than from neglect or failure or indifference. The fact that such adjustments are made, and that such parents may be receiving a high level of help and support, does not, they say, mean that they are not bringing up their children. Why, they ask rhetorically, should it be any different for these parents with their difficulties?
  • They suggest that the true approach is best illustrated by those parents who choose to have assistance, for example, parents working long hours who employ a live-in nanny not merely to look after the children while their parents are at work but also to help with the daily beginning and end-of-day routines, or parents who send their children away to boarding school (and will therefore not see their children for days or possibly weeks on end), or the parents moving in circles where, even today, there is a domestic staff cooking the meals and where the children may eat separately from their parents. No doubt, they say, in all these cases the parents hope for continuity throughout the child’s childhood, but, as they point out, that is not the real world. Nannies move on, staff change, teachers leave, so the children are exposed to differing professionals providing care for them at differing stages during their childhood.
  • The point, they say, is that if one steps back and considers not the circumstances which bring about this help with or delegation of parental care but the experience of the child in these various examples it does not differ markedly, if at all, from what D’s experience would be under his parents’ proposals – except that he would probably have rather more parental care. They stress that these are not flippant points. They are made to underline the submission that it is easy to criticise, easy to buy into the notion that there is a way in which parents in care proceedings are expected to take sole unassisted responsibility for parenting and that if they do not or cannot then it is not good enough.
  • Ms Morgan and Ms Sprinz conclude with two further submissions. They reject the guardian’s approach that the parents will need 24 hour wrap-around support. That is not what the mother is seeking, nor is it what she, or the father or D need. Finally, they suggest that there has been an undue emphasis on risk, particularly in relation to D’s safety. Quite apart from the fact that all the incidents relied upon predated the local authority’s volte face, they point out that risk cannot be eradicated from children’s lives, although of course it can and should be reduced. They urge a sense of proportion: of course, a child can fall and poke himself in the eye with a dinner knife, but so too with a pencil, a crayon or a toy. The parents can learn to manage by modelling, which the mother, they say, will accept and learn from. Moreover, as they point out, risks change through time: road safety with a small child becomes internet safety with an older child; bath-time is hazardous for a very small baby but the risk diminishes over time to nothing for the older child. The parents, they urge, with proper training and support will be able to manage the changing risks. The mother, as they point out, has changed in her view of D’s needs and limitations. Earlier on, she was unwilling to accept that there was anything wrong or that he had any difficulties; in her evidence, she was able to acknowledge that that this was not so, saying that “it’s on both sides of his family, so it’s not that surprising.”
  • With proper support, they submit, D’s parents will be able to care for and look after him adequately. They point out that whoever looks after D will need help and support. They urge me to be rigorous in my Re B-S analysis, carefully evaluating and balancing the benefits to D of returning to his home to be looked after by devoted parents who love him very much and who have done and always will do their very best to care for him, accepting him and loving him as he is, against what they suggest are the unknowns and perils of adoption, particularly for a child with D’s characteristics. My assessment of what the parents propose for D must, they submit, be based upon the full support package proposed, that is, with input from A+bility, the local authority, other professionals and Mr and Mrs P. Adoption, they say, is not a panacea. I should be cautious about accepting the local authority’s rather sanguine view as to the ease with which suitable adoptive parents will be found – a view based, they suggest, on a limited understanding by that part of the local authority of D’s particular needs and complexities. They urge me to feed into my evaluation the risk that D may not be adopted and thus end up remaining in foster care.
  • At the end of the day, as they rightly observe, it is not my task to find a ‘better’ family for D if, in truth, his parents, with proper support and assistance, can provide him with good enough parenting. I must be vigilant not to countenance social engineering.

 

 

Okay, to be fair, I have not also quoted from the counter submissions from the Local Authority and the Guardian, who make a series of very good points also. But the argument is challenging nonetheless.

I felt when I was reading the judgment that the President was very drawn to the spirit of these arguments, and there’s a passage where he makes it explicit that he was striving to reach a conclusion that would have returned D to his parents care.

 

 

  • Ms Fottrell, Ms Morgan and Ms Sprinz join in submitting that, with the benefit of the right package of extensive – what they accept will need to be very extensive and intensive – support, with all the right input from A+bility, from the local authority and other professionals and from Mr and Mrs P, the parents will be able to provide D with adequate care, today, tomorrow and well into the future, indeed throughout the remainder of his childhood.
  • In response, the local authority and the guardian make three essential points, with each of which I am, sadly, at the end of the day, driven to agree:

 

i) The first is that the proposed package will simply not work, is simply not sustainable for as long as it would have to be maintained in place to meet D’s needs. Despite the best intentions of the parents, they have, the mother in particular, great difficulty in accepting guidance, advice or support when it does not fit in with their own views. The experience of what happened between November 2013 and March 2014 is, unhappily, an all too likely predictor of what will happen again. I am driven to conclude that the parents – through absolutely no fault of their own – will simply not be able to maintain over the ‘long haul’ the effective working partnership with the support team which is essential if the package is not to collapse.

ii) The second is that, even if the package can somehow be maintained, the gap between what the parents can offer D and what he needs is very large indeed and, sadly, in my judgment, simply too large to be capable of being bridged by even the most extensive support package. I refer, without further citation, to what I have already set out (paragraphs 145-149). I am driven to this conclusion after the most careful consideration of all the evidence, including, of course, the important evidence of Mrs P, which points in the other direction.

iii) The third is that even if a sustainable package could be devised which was in one sense capable of bridging the gap, it would not in fact be promoting D’s best interests. His parenting would, in reality, become parenting by his professional and other carers, rather than by his parents, with all the adverse consequences for his emotional development and future welfare identified by MB, by Ms Randall and by the guardian.

 

  • In relation to this last point I must, of course, address the powerful and perceptive submissions of Ms Morgan and Ms Sprinz (paragraphs 116-119). There is much in what they say with which I agree. And in many cases their analysis would indeed point in the direction to which they would have me go. But at the end of the day the outcome will always be case specific, dependent upon the particular, and often, as here, unusual, facts of the particular case. In the present case there are, in essence, two reasons why on this point I am unable to follow Ms Morgan and Ms Sprinz. The first is that this is only one of three quite separate reasons why, as I have said, no sustainable and effective package can be devised – so this particular point is not, in fact, decisive. The second reason flows from their submission (paragraph 116) that what matters is that the child has a clear and secure knowledge of who his parents are. But that, in the light of what MB, Ms Randall and the guardian have all told me, would at best be very questionable here.
  • I confess that I have struggled hard to try and find some proper basis upon which I could conscientiously have come to a different conclusion. But at the end of the day, and for all the reasons I have given, I am driven, however reluctantly and sadly, to the conclusion that D must be adopted. I am satisfied that ‘nothing else will do’; that D’s welfare throughout his life requires that he be adopted; and that his parents’ very understandable refusal to consent to his adoption must be dispensed with.

 

In effect, the President’s decision was that adoption was the right outcome for the child because it was not possible to devise any plan that would work to keep the child at home with the parents and have his needs met, partially because of the scale or what was needed and partly because the parents understandable issues with professionals would cause any such plan to break down.

 

On the reparative care point (for a particular child can the LA say that the parenting required is higher than ‘good enough’ because of the child’s needs) the President says this:-

 

 

  • Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.
  • Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand. I make clear that in coming to this conclusion and in expressing myself in this way I have very much had in mind and taken into account Ms Fottrell’s submissions.

Somewhat side-stepped so as to preserve the principles of “good enough” parenting, but stressing that it must be “good enough” for this particular child with these particular needs.

 

 

  • Standing back, I return to the questions I posed at the outset: Given that these are parents who the local authority, the guardian and the court agreed in November 2012 were able to provide their son D with good enough parenting, given that that conclusion was endorsed by the local authority on 3 February 2014 after careful evaluation and in the light of a very careful core assessment completed as recently as 29 January 2014, What has happened? What has changed? Why is the local authority now proposing, and why am I agreeing to, something so radically different?
  • The answer, in my judgment, is to be found in a telling phrase used by the guardian and a question posed by Ms Fottrell. As long ago as November 2012 the guardian had described the local authority’s plan as “courageous”. The sad reality is that it turned out to be too courageous. Ms Fottrell, as we have seen, posed the question of whether the reason D was removed in March 2014 was because the necessary support had not been provided by the local authority or because the local authority’s expectations of the parents had turned out to be unrealistic. In my judgment it was the latter. Despite the very intensive support provided by the local authority, it gradually became apparent, contrary to everyone’s hopes and expectations, that the parents were not able to manage. Matters came to a head in March 2014 when, in effect, if one wants to put it this way, MB admitted defeat and realised that her, and her colleagues’, hopes and expectations were not going to be, in reality could not be, achieved.
  • This, as I said at the outset, is a desperately, indeed, a wrenchingly, sad case. D’s parents are devoted to him and have always wanted to do, and have done, their very best for him. They would never harm him, and have never done so. They are not in any way to blame. They are not to be criticised. It is not in any sense their fault. They have struggled against great odds to be, as they would want to be, the best possible parents for D. But ultimately it has proved too much for them. Their own difficulties are simply too great. My heart goes out to them.

 

 

The President also imports some new principles / approaches into English law, by borrowing from a decision in an Irish Court.

 

 

  • This leads on to the profoundly important of observations of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5. So far as I am aware, his decision has never been reported, but the transcript is freely available on the BAILII website.
  • Gillen J referred to a number of papers and reports, including “Finding the Right Support”, a research paper from Bristol University’s Norah Fry Research Centre funded and published by the Baring Foundation in 2006. He continued:

 

“A reading of these documents leads me to set out a number of matters which I feel must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.”

He then set those matters out in eight numbered paragraphs. Although lengthy, they are so important that they require quotation in full. Accordingly, I set them out in an Annex to this judgment. I respectfully agree with everything said by Gillen J. I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.

 

David Burrows and I will probably ponder for aeons as to whether this is actually binding on anyone, and whether it actually forms part of the decision or is simply part of the President’s stylistic approach to judgments whereby they are part judgment, part speech, part policy initiative and part a Practice Direction without a consultation process. But for non geeks, it is a pretty simple message. Follow this stuff, or else.

 

 

  • Extract from the judgment of Gillen J in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8, para 5:

 

“(1) An increasing number of adults with learning difficulties are becoming parents. The Baring Foundation report records that whilst there are no precise figures on the number of parents with learning difficulties in the population, the most recent statistics come from the First National Survey of Adults with Learning Difficulties in England, where one in fifteen of the adults interviewed had children. Whatever the figure it is generally recognised that their number is steadily rising and that they represent a sizable population whose special needs require to be adequately addressed. The Baring Foundation report refers to national policy in England and Scotland committing government to “supporting parents with learning disabilities in order to help them, wherever possible, to ensure their children gain maximum life chance benefits.” Nonetheless the courts must be aware that surveys show that parents with learning disabilities are apparently more likely than other parents to have their children removed them and permanently placed outside the family home. In multidisciplinary jurisdiction such as the Family Division, it is important that the court is aware of such reports at least for the purposes of comment. It is important to appreciate these currents because the Children Order (Northern Ireland) 1995 places an emphasis on supporting the family so that children can remain with them and obligations under disability discrimination legislation make public services accessible to disabled people (including parents with learning difficulties). Moreover the advent of the Human Rights Act 1998 plays an important role in highlighting the need to ensure the rights of such parents under Articles 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms (“the Convention”).

(2) People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen. Government policy emphasises the importance of people with a learning disability being supported to be fully engaged playing a role in civic society and their ability to exercise their rights and responsibilities needs to be strengthened. They are valued citizens and must be enabled to use mainstream services and be fully included in the life of the community as far as possible. The courts must reflect this and recognise their need for individual support and the necessity to remove barriers to inclusion that create disadvantage and discrimination. To that extent courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. They must be supported in ways that take account of their individual needs and to help them to be as independent as possible.

(3) It is important that a court approaches these cases with a recognition of the possible barriers to the provision of appropriate support to parents including negative or stereotypical attitudes about parents with learning difficulties possibly on the part of staff in some Trusts or services. An extract from the Baring Foundation report provides a cautionary warning:

“For example, it was felt that some staff in services whose primary focus was not learning difficulties (eg in children and family teams) did not fully understand the impact of having learning difficulties on individual parents’ lives; had fixed ideas about what would happen to the children of parents with learning difficulties and wanted an outcome that did not involve any risks (which might mean them being placed away from their family); expected parents with learning difficulties to be ‘perfect parents’ and had extremely high expectations of them. Different professionals often had different concepts of parenting against which parents were assessed. Parents’ disengagement with services, because they felt that staff had a negative view of them and ‘wanted to take their children away’ was also an issue, as were referrals to support services which were too late to be of optimum use to the family – often because workers lacked awareness of parents’ learning difficulties or because parents had not previously been known to services”.

(4) This court fully accepts that parents with learning difficulties can often be “good enough” parents when provided with the ongoing emotional and practical support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. The extended family can be a valuable source of support to parents and their children and the courts must anxiously scrutinize the possibilities of assistance from the extended family. Moreover the court must also view multi-agency working as critical if parents are to be supported effectively. Courts should carefully examine the approach of Trusts to ensure this is being done in appropriate cases. In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. Courts must be acutely aware of the distinction between direct and indirect discrimination and how this might be relevant to the treatment of parents with learning difficulties in care proceedings. In particular careful consideration must be given to the assessment phase by a Trust and in the application of the threshold test.

(5) Parents must be advised by social workers about their legal rights, where to obtain advice, how to find a solicitor and what help might be available to them once a decision has been taken to pursue a care application. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. Parents with learning disabilities should be advised of the possibility of using an advocate during their case eg from the Trust itself or from Mencap and clear explanations and easy to understand information about the process and the roles of the different professionals involved must be disclosed to them periodically. Written information should be provided to such parents to enable them to consider these matters at leisure and with their advocate or advisers. Moreover Trusts should give careful consideration to providing child protection training to staff working in services for adults with learning disabilities. Similarly those in children’s services need training about adults with learning disabilities. In other words there is a strong case to be made for new guidelines to be drawn up for such services working together with a joint training programme. I endorse entirely the views of the Guardian ad Litem in this case when she responded to the “Finding the Right Support” paper by stating:

“As far as I am aware there are no ‘family teams’ in the Trusts designated to support parents with a learning disability. In my opinion this would be a positive development. The research also suggests that a learning disability specialist could be designated to work within family and childcare teams and a child protection specialist could be designated to work within learning disability teams. If such professionals were to be placed in the Trusts in Northern Ireland they could be involved in drawing up a protocol for joint working, developing guidelines, developing expertise in research, awareness of resources and stimulating positive practice. They could also assist in developing a province-wide forum that could build links between the Trusts, the voluntary sector and the national and international learning disability community.”

(6) The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them. Advocates can play a vital role in supporting parents with learning difficulties particularly when they are involved in child protection or judicial processes. In the current case, the court periodically stopped (approximately after each hour), to allow the Mencap representative to explain to the parents what was happening and to ensure that an appropriate attention span was not being exceeded. The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. In this case I was concerned that some of the letters written by the Trust may not have been understood by these parents although it was clear to me that exhortations had been given to the parents to obtain the assistance of their solicitors (which in fact was done). In terms therefore the courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals ineffectiveness in engaging with the parents in appropriate terms. Courts must not rush to judge, but must gather all the evidence within a reasonable time before making a determination. Steps must be taken to ensure that parents have a meaningful and informed access to reports, time to discuss the reports and an opportunity to put forward their own views. Not only should the hearing involve special measures, including a break in sessions, but it might also include permission that parents need not enter the court until they are required if they so wish. Moreover the judges should be scrupulous to ensure that an opportunity is given to parents with learning disabilities to indicate to the court that something is occurring which is beyond their comprehension and that measures must be taken to deal with that. Steps should also be taken throughout the process to ensure that parents with learning disabilities are not overwhelmed by unnecessarily large numbers of persons being present at meetings or hearings.

(7) Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments, and the impact of the social and economic deprivation commonly faced by adults with learning difficulties. It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully and why their children should often be taken into care. At its simplest, this means a court carefully inquiring as to what support is needed to enable parents to show whether or not they can become good enough parents rather than automatically assuming that they are destined to fail. The concept of “parenting with support” must move from the margins to the mainstream in court determinations.

(8) Courts must ensure that careful consideration is given to ensuring that any decision or judgment is fully explained to such parents. In this case I caused a copy of the judgment to be provided to the parties at least one day before I handed it down to facilitate it being explained in detail before the attendance at court where confusion and consternation could be caused by a lengthy judgment being read which the parents could not follow at the time.”

[I’m rather struck by the underlined words in paragraph 4   In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

Although threshold had already been established in this case when the original Care Orders were made, it does appear that the worst thing that happened to D whilst he lived with his parents before being removed and a plan of adoption approved was that there was an occasion when mother closed a kitchen drawer not knowing that D’s finger was in the way, giving him a swollen and no doubt quite painful finger.  Hmmmm.

The Judge had this to say about that

  • First, the question of D’s physical safety. It is important both to keep this in perspective but at the same time also to understand the real focus of the local authority’s concerns. I start with two obvious but important points. The parents have never done nor, I am satisfied, would they ever dream of doing anything to harm D. And the fact is that, with the sole exception of the occasion when his finger was trapped in the drawer – something that could happen to any child in the care of the most attentive and careful if momentarily distracted parent – D has never suffered any physical harm while in their care. Moreover, the specific incidents to which the local authority understandably draws attention are none of them, viewed in isolation, anything particularly out of the normal; indeed, probably familiar, if we are honest about it, to any parent. On occasions, children do escape. On occasions they find things which may cause them injury if they fall over. On occasions they make more or less perilous journeys up or down potentially dangerous staircases. On occasions parents, in exasperation, throw things.*
  • I should add that I reject any suggestion that the parents have ever been other than caring and diligent in making sure that D receives appropriate medical treatment whenever the need arises. I accept the mother’s explanations as to why, and in my judgment quite reasonably, she took the view that D did not need medical attention after his finger was trapped in the drawer. Whatever she may have said to TG, and the words TG reports are capable of more than one meaning, I reject any suggestion that this was a deliberate attempt by the mother to cover up. She would, I am confident, always have put her child’s safety first. That is simply the kind of mother she is.

[*Expect to see Re D a child No 3 2016 turn up in responses to thresholds for all manner of similar issues over the next few months. This seems to be judicial authority for it being okay to throw things in exasperation and will no doubt be pleaded as such]

He does, however, say that the evidence was that the parents could not properly anticipate risks

 

  • So what is the real focus of the local authority’s concern in relation to safety? Looking to the various views expressed by A+bility (paragraph 52 above), by MB (paragraph 61), by TG (paragraphs 67-70), and by Ms Randall (paragraphs 78-79, 81), all of which are to much the same effect and point in the same direction, and which I have no hesitation in accepting, the problem is a group of difficulties the mother has: in anticipating possible risks (particularly if they are novel); knowing how to react quickly and effectively in the face of potential hazard; not always being able to anticipate or control D’s actions; not being able to transfer past experiences or training into practical precautions next time round (as TG put it, progress ‘in the moment’ tended not to be carried through over time); not being able to bring her theoretical awareness of risk to bear effectively when confronted with a live situation; and not being able to multitask in situations where she might be distracted from her focus on D. TG’s description (paragraph 67) of the contrast between the mother’s fluent explanations and her inability to translate this into practical terms is striking and illuminating, as indeed is the whole of TG’s evidence on the issue of danger.
  • In my judgment, these are very real and very worrying concerns. The cumulative weight of all the professional opinion on the point is compelling in identifying and evidencing just why the professionals are, and in my judgment rightly, so concerned. Not just for the here and now but also for the future, as D, who Ms Randall describes as a child with little sense of danger, becomes more challenging and finds himself exposed to new and different forms of danger.

 

Again, hmmm. In all the time that D lived with the parents (and remember, against a backdrop of the LA REDUCING the practical support to the family), this failure to anticpate risk led to just one injury, a pretty innocuous one.  Have we really here ensured that:-

In particular judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents

And I have to ask myself, rhetorically, whether the Judge who decided Re A, would have countenanced within a threshold that a child’s finger was accidentally caught in a drawer that mother was closing IF THE MOTHER DID NOT HAVE LEARNING DIFFICULTIES and that was being used as evidence that her difficulties made her a poor parent?

 

 

 

 

Law on adoption to be fundamentally changed

 

The Secretary of State for Education has “unveiled plans” to fundamentally change the law on adoption, many newspapers report today.

This is one of those peculiar unveilings where nothing actually gets unveiled. This announcement is unveiling in the same way as Michelangelo lifting up the cover over David an inch so that people can see it is a statue of a human, possibly a man, almost certainly made out of marble is unveiling the statue.

 

Or being invited to a film premiere, where you are ushered into a room and shown a copy of the poster for the film.

There’s nothing on the DFE website with any actual proposals, any actual intentions, any sort of timescale, or any suggestion as to how it is going to be done. There’s not even a press release available. I’m sure the Press got one, but it isn’t published.  My guess is via statutory instrument, the Adoption and Children Act 2002 has enabling provisions to allow the Secretary of State to make regulations telling Local Authorities and Adoption Agencies to exercise their functions under the Act.  There’s no such power to tell the Courts how to apply the law or tests, so that would require an Act of Parliament. A much longer process, and generally one that starts with a formal proposal to be consulted on.

Anyway, let’s look at what little we do know. I think Community Care’s piece is the best one for that.

 

http://www.communitycare.co.uk/2016/01/14/law-will-changed-increase-adoptions-government-announces/

 

The government has said it will quickly change legislation to make sure councils and courts prioritise placements on the basis of whether they will provide care up to the child’s 18th birthday, and provide the quality of care the child will need to recover from abuse and neglect.

The government said the change would mean that courts and councils always pursue adoption when it’s in a child’s interests. Morgan said it would “make sure decisions rightly prioritise children’s long-term stability”.

 

It sounds to me that this is intended more to be a reform to Special Guardianship – we were after all told at the start of this year that changes to law on that would be imminent, so it would fit.  It seems as though this is focussing on Local Authorities making scrutiny of potential alternative placements with an eye to two things :-  (1) will this placement really endure until the child’s 18th birthday and (2) can the placement offer the quality of care needed to fix any harm the child has suffered  – a concept called “reparative care” and one that’s not so far had a clear place in English law.

One person’s “reparative care” is another person’s “This is social engineering” and it can be a tricky argument to deal with in Court. It will be interesting to see how the draft (or indeed actual) legislation frames it.

Will changes to what Councils have to look at make any real difference on the ground if the legal principles that the Court will apply remain those set out in the Act itself, as developed by caselaw?

Potentially, if the legal change is more about examining the alternatives to adoption, then the DFE / Secretary of State have potentially wider powers to make regulations than under the Adoption and Children Act 2002

s14 (F) (7) The Secretary of State may by regulations make provision about assessments, preparing and reviewing plans, the provision of special guardianship support services in accordance with plans and reviewing the provision of special guardianship support services.

(8)The regulations may in particular make provision—

(a)about the type of assessment which is to be carried out, or the way in which an assessment is to be carried out;

(b)about the way in which a plan is to be prepared;

(c)about the way in which, and the time at which, a plan or the provision of special guardianship support services is to be reviewed;

(d)about the considerations to which a local authority are to have regard in carrying out an assessment or review or preparing a plan;

(e)as to the circumstances in which a local authority may provide special guardianship support services subject to conditions (including conditions as to payment for the support or the repayment of financial support);

(f)as to the consequences of conditions imposed by virtue of paragraph (e) not being met (including the recovery of any financial support provided);

(g)as to the circumstances in which this section may apply to a local authority in respect of persons who are outside that local authority’s area;

(h)as to the circumstances in which a local authority may recover from another local authority the expenses of providing special guardianship support services to any person.

Potentially the underlined passage could include factors within the assessment that the Court must have regard to.  It would be very rare for Regulations to be made that add boundaries to a Court’s discretion which aren’t contained within the Statute itself – I suppose the precedent would be the various sentencing regulations and guidance for criminal Courts…

I’d also looked at Part I Schedule 11 that sets out the powers of the Lord Chancellor to make regulations in terms of jurisdiction, but that only applies to which level of Court can deal with which particular type of family law case, so it would not allow Regulations to be made about the principles the Court must apply.

Sadly, all of this is in a vacuum of information at the moment. I really wish that rather than giving speeches or press releases announcing a plan, the Government would occasionally put the broad details of what is proposed and timescales and route into the public domain.  At the moment, it is very difficult to see whether this really is a fundamental change to adoption law, or simply writing down in Regulations what almost every Local Authority already does  – they don’t tend to recommend placing children with relatives if they think it is bound to break down or to damage the child. The issue will always be about whether those doubts are capable of being supported by evidence, which when tested actually comes up to proof.

The press release is now up, and Community Care had already wrung every last scrap of actual detail out of it. But for completeness, here it is

https://www.gov.uk/government/news/education-secretary-unveils-plans-to-change-adoption-law

What price the 350 page limit?

 

I have talked about the 350 page bundle limit before, and how a “one-size fits all” regardless of the nature of the case is a blunt instrument which does not always work.

 

This is a case in point.

Local Authority A v N and others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1301.html

 

Very sadly, the father in the case was displaying pronounced symptoms of mental health difficulties but would not engage in any assessment process, which might have enabled him to get a diagnosi and treatment.  He had placed 3 supplemental bundles of his own construction before the Court, consisting of around 1,400 pages, and insisted on those documents being read.  These matters related notionally to the father’s deep-seated belief that there was a secret conspiracy at the highest levels and permeating almost every strata of society about fostering and adoption.  Whilst even national newspapers routinely publish articles hinting or claiming such a thing, here the father’s beliefs had taken a complete hold of him and almost any fact or newspaper article no matter how tangential, was woven into his belief system.

 

[This is not an attack on those who believe and espouse their views about corruption and bad practice in the family justice system – this man was going far far beyond that sort of thing. For example, the critics of the family justice system that I spend time in discussions with would be unlikely to perceive that seeing a social worker in MacDonalds with some children unconnected to the case would warrant writing to MacDonalds about social workers ‘infiltrating’ MacDonalds or to accuse the children of being child-actors; nor would they be anything like so fixated on Ringo Starr’s role in the forced adoption industry – given that he doesn’t have one.  This is not a man being penalised for exposing corruption or challenging a flawed system, this is a man with considerable mental health problems.

No doubt it would be possible for an unscrupulous journalist to turn the story into “Man loses children for daring to speak out about corruption in secret family Courts’, but there’s no such thing as an unscrupulous journalist, so that will never happen.]

 

 

  • After considering everything I have read, heard and seen during this hearing I make the following findings. They are additional to the findings that I have already made whilst going through some of the issues above.

 

(a) I accept, as I said at the outset, that when D was living at home and when she lived with her mother at her grandparents home in 2012, she was much loved and well cared for. I also accept that C was much loved when she was living at home, although I cannot comment meaningfully on the quality of her care, because in the nature of things it has not been examined at this hearing. D was physically well and attended all her immunisations and health visiting appointments. She attended the nursery properly and the parents would phone in to say if she was ill. I repeat that the numerous photographs which the mother has asked me to look at and the eighteen DVDs (which includes the two about the European Parliament) put in by the father show both girls interacting happily within their family. I accept that the father and the mother are non-drinkers and non-smokers. There are no criminal convictions in the family. The grandparents too are decent people who love their grandchildren, who brought up their own children, who worked hard until retirement and who would never have expected to become involved with Social Services; nor for that matter to be contemplating the care of two children when in their seventies.(b) Unhappily, however, I am satisfied on the expert evidence and on everything I have seen, heard and read, that the father has been and is now mentally unwell. He does not recognise this, nor does the mother, nor do the grandparents. There is, however, abundant and solid evidence for that conclusion. Specifically I refer to the opinions of Dr. Mumford, Dr. Pilgrim, Dr. McGeown and Professor Mortimer. I also refer to the contents of Supplemental Bundles 1, 2 and 3. Initially the contents of those three lever-arch files seem sometimes completely incomprehensible. This is partly because of the father’s idiosyncratic writing style and partly, as I have said, because many of the attachments are missing. However, I have come to realise as the case has gone on, particularly on hearing the father, that there is underlying his tortured logic a just about intelligible reason for why he fires off most of the complaints and demands which he does. Most emails, with some exceptions, can be seen to relate essentially to his sense of grievance about the loss of the children and his obsessive but unsupported beliefs that this is based on multiple conspiracies, malpractices, lies and hidden agendas. Unfortunately, these paranoid and distorted beliefs have led him to overreact beyond the bounds of reason with cross-references in his mind to other people, organisations and events having in reality nothing to do with his children. They, the children, become joined into his whistleblowing-type campaigns, because his mental ill-health distorts his ability to see things in proportion and to distinguish as regards the children the relevant from the irrelevant. Through his distorted thinking, much of his time must have been taken up with researching supposed culpabilities and pursuing them, often in a grandiose manner, without apparent empathy for those on the receiving end, nor for the inconvenience which he may have been causing to third parties. These suspicions and beliefs have unhappily been fuelled by the coincidence of Local Authority B having been placed by the government into a form of trust and by [certain] scandals emerging locally in places like [named], as extensively reported in the media.

(c) I find that the contents of Supplemental Bundles 1, 2 and 3 justify the use of the words ‘distorted’ and ‘grandiose’ in the last paragraph. Just to give a flavour of what I mean, they contain the following sorts of things: sent to Her Honour Judge L, a newspaper item about women with hourglass figures having brains to go with their curves; to Local Authority A, accusing Kerry Chafer of running paedophile activities and money laundering; to Local Authority A, declaring Kerry Chafer to be ‘linked to’ dwarfism and gross obesity; sent to the Children’s Guardian’s solicitors, various press cuttings including, ‘Commons to get in-house mental health clinic for MPs suffering from depression’ and ‘One in five struggle to have a baby’; complaints about Local Authority A Social Services running with an imbalance of female and male social workers, making it dysfunctional; complaining to the Royal Mail that it had illegally delivered to him a notice which had arrived late about a parenting education meeting; asserting that the children’s guardian’s solicitor has a ‘gross and autistic daughter’; to the European Parliament about Tesco’s selling a hi-fi system with some label or leaflet promoting adoption; to Professor Mortimer, threatening to report her to the police; to [named] University concerning Professor Mortimer and reminding them that ‘the case is listed at the International Criminal Court in the Hague’; reference to an article about prisoners in cages; to Zurich Insurance PLC concerning an ex-employee of theirs’ who was ‘linked to’ Local Authority B’s street window display promoting adoption; to Amazon concerning a former Mayor of Local Authority B, because they were selling a book which he had written; to the publishers of that book, telling them to end their contract with the author and saying that the subject matter of the book (a very prominent politician) would himself be served with court notice about it; to Ofsted about its former female chair five years previously who had recently made sexual disclosures about herself in the newspapers; to the college or academy where that woman now works, advising them to remove her from her Chair, with reference to ‘child trafficking, money laundering, forced adoption, birth parental suicide and genocide’ and with references to the Crown Prosecution Service and the European Parliament; to Local Authority A, complaining about a social worker having ‘infiltrated’ McDonald’s by having an interview with a child (not connected with this case) and the child’s mother there; to the website ‘Just Giving’ about the Mayor of [town named], who had posed for a nude charity calendar, requesting details of the publishers and distributors of that calendar; a complaint about a prominent cabinet member who had publically said something about people coming to London for sex, stating that he must step down or be removed; to Ofsted requesting the arrest of ‘named social workers’; to the Electoral Commission about its alleged link with a television programme on adoptions and with a particular trades union; to a sign manufacturer complaining of signs on a local roundabout encouraging fostering and adoption, referring to a claim for substantial compensation and mentioning the international criminal court; a ‘To Whom it May Concern’ about the ‘continual adverse, unnecessary abuse holocaust distribution of NHS medication to hundreds of thousands of UK civilians’; to the Archbishop of Canterbury about ‘a named social worker’ not taking Easter gifts to D; to two librarians at a local library, complaining about posters there encouraging people to foster or adopt, saying that he had given them several days to remove those posters and that they would be ‘challenged to the Press Complaints Commission and others’; to [the] Police requesting consideration of the arrest of the art therapist at the H Children’s Unit and H’s directors on the grounds of fraud and embezzling up to £300,000 from the public purse; to Sports Direct because it had announced that it had entered into a ‘put option agreement’ relating to Tesco PLC shares. I have noted more than fifty individuals and organisations (ignoring just copying in) to whom the father has sent correspondence, including by way of example [named] University, [named] University, [named] University, the Parliamentary Ombudsman, the International Criminal Court at the Hague, the police, the DPP, the Leadership Foundation for Higher Education, the RSPCA, News Corporation, Zurich Insurance, the Criminal Cases Review Commission, Tesco, the British Humanist Association, and so on. By way of further example, one or two of the newspaper articles annexed to his communications have the following headlines: ‘Born junkies. Three babies hooked on heroin or crack are delivered every day’; ‘Children of obese Mums likely to die younger’; ‘Labour and NHS stitch-up’; ‘Council anger over naked town mayor’ (a charity calendar); ‘Cameron’s attempt to do God faces test of faith by electorate’; ‘Labour reforms fail to convince voters’; and ‘Ministers ask Charles: Can we take away your powers?’

(d) It is not only the contents of the father’s Supplemental Bundles 1, 2 and 3 which demonstrate his abnormal thinking process and ability to see things in normal proportion, but almost more so his insistence that I should read those bundles as being supportive of his case in respect of his children. The reality is that they help to justify and support the conclusions of Professor Mortimer. Her Honour Judge P QC made the same point (at paragraph 72 above) in April 2009. Professor Mortimer told me in evidence that although she had not read all the father’s documents in the three bundles, she had read enough to recognise them as being ‘… typical of the sort of material produced by persons with this type of mental disorder.’ When it was put to her by Mr. Godfrey on instructions that she had given ‘totally false and biassed weight’ to the cases of the local authorities and had ignored the father’s case, she disagreed, saying that she had not ignored the father’s material, but on the contrary had ‘… used it in arriving at her professional diagnosis and conclusions.’

(e) Unhappily both the mother and the grandparents have been so influenced by the strength and persistence of the father’s beliefs about the targeting of the family, conspiracies and fabrications that they have come to absorb these beliefs which have become part of their own respective mindsets. This has been painfully but abundantly obvious (i) from everything which each of them has said to the social workers, (ii) from the questions which they have caused to be put in cross-examination (or in the grandparents’ case have put themselves) to the local authorities’ witnesses and (iii) from their evidence in the witness box. They have become embroiled with the father’s views and beliefs, however improbable and however lacking in evidential support.

(f) The father’s refusal to cooperate in an up-to-date psychiatric examination, as strongly advised by McFarlane LJ in October 2014 and repeated by myself in January 2015, and his refusal to speak to the Children’s Guardian, have greatly diminished his prospects within these proceedings. I doubt that this is a product of stubbornness, for I can see that he can be a pleasant and cooperative person. I suspect it is more a product of his mental ill-health and his complete inability to see that there would be a benefit to him (and thus to all the family, including the children) from an up-to-date psychiatric diagnosis, coupled with whatever medication or other help a consultant psychiatrist might offer. The mother too has diminished her prospects by refusing to have an up-to-date psychological assessment, or to meet with the children’s guardian. An up-to-date psychological assessment of her would have been invaluable as to whether she has fully and truly embraced the father’s beliefs, or whether she is simply unable to confront and challenge him. These refusals by both parents demonstrate a lack of insight into what materials a court needs to determine a difficult case like this in the best interests of the children.

(g) I accept the diagnosis by Professor Mortimer, albeit limited to being a paper exercise, that there does exist a ‘folie à deux’ between the mother and the father. I further accept the Professor’s view, as to which she is in agreement with the previous psychiatric and psychological experts, that the father will stay as he is without treatment. She gives the opinion that there is ‘… no hope at all of any spontaneous resolution’. I accept that opinion. She advises that the natural course of untreated schizophrenia is a gradual, slow cognitive decline, with the defects tending to be in reasoning, judgment, memory and concentration. This is a sad prognosis, but that is what it is.

(h) I am satisfied from everything I have seen and heard that those social workers, health visitor, nursery school workers, care home staff and contact supervisors who have made statements and/or whom I have heard in evidence have carried out their duties and functions with due professionalism, without dishonesty or fabrication and in pursuit of what they have considered would best serve the welfare of the respective children. The proposition only has to be stated that all these professionals have been drawn into a conspiracy involving dishonesty and perjury by a wish to get back at the parents for some complaint the parents made about C’s school in 2005, to realise how fantastic it actually is. Yet the family members have become blind to this and in the case of the mother and grandparents have become disabled from critically examining or challenging it. As Miss Stanistreet put in cross-examination, the father’s case involves professionals in every discipline involving three counties over ten years having actively lied and made things up in order to get the children into care: yet that is the case relied on by the family members.

(i) I find that whilst, as seen on the DVDs, the father can be pleasant and charming, there is also a blustering and domineering side to him, when he can be insistent on getting his own way over things which he sees as important. On occasions I find that he has behaved in intimidating ways, as appears in places throughout the evidence, including with professionals such as social workers and at the nursery. This makes it extremely difficult to reason with him or to discuss things usefully with him: reference for example Rachel Payne’s efforts to discuss with him Dr. Melia’s psychological report, in respect of which she effectively had to give up. Further, the mother and the father have had a habit of simply not turning up on occasions for meetings about the children.

(j) I find that, although D did eventually have the various recommended and clearly necessary assessments (first advised by Dr. Knight-Jones in November 2010 and as mentioned in the contracts of expectation of February 2011 and February 2012), the mother and father were mainly oppositional to them. They did not think they were necessary. They refused to go along with social work and nursery advice about SEN funding for extra one to one help, on the illogical basis that this would ‘label’ D, when the whole idea of such extra help was that she would then keep up with her peers when moving on to her first school. It took the interim care order in mid-2012 before the extra funding could be obtained. When Mrs. Monks explained her observation of D’s delay at the nursery to the father, he called them ‘rubbish’. He said in cross-examination that the one to one help eventually obtained for D by the professionals had not helped her at all.

(k) I find that the situation when the mother and D lived with the grandparents was an increasingly difficult one and I accept that the grandparents admitted as much to Miss Chafer. It is quite understandable why this should have been so. I find, however, like Mrs. Recorder Q, that the tensions have (as happens) been minimised in the minds of the mother and the grandparents. It was not a situation which would indefinitely have continued to provide D with a calm and stress-free environment. I accept that the grandparents told Kerry Chafer that the father was overstaying his contact at times (not just being allowed to make up lost time when public transport made him late) and that they found it difficult to challenge him. It is clear that they were told by Social Services after the mother’s 999 call on 21st August 2012 not to leave the mother alone with D, but that they did so (ie did leave the mother alone with D) in the firm belief that this was justified, as there was no way the mother would harm D. This must raise serious concerns if D were to be in the grandparents’ care about their ability to protect D against the emotional pressure likely (as I find) to be imposed on them by the mother and father’s strong views about getting the children back to their home.

(l) It is a fact, and I so find, that all the family members have an antipathy to the Social Services with whom (along with other agencies) there would absolutely have to be cooperation if D lived within the family. Even putting the family’s case at its very highest, no outcome could reasonably be countenanced without at the very least a supervision order. The father stated in his most up-to-date statement (23rd February 2015): ‘… I do not like the local authorities and do not want their involvement in my family.’ The mother told me that she sees the children and the family members as ‘victims’ and that ‘… I want nothing to do with the Social Services any more. I want no involvement with them, because I hate them.’ The grandfather spoke in his evidence of anyone having dealings with the Social Services as being ‘in for a life of hell.’

(m) I find it to be extremely likely, indeed virtually unavoidable, that any child living with the father and mother would be exposed to their distorted views and beliefs across a wide range of areas. It would involve such a child being brought up in an ethos where those in positions of a sort of authority (schools, social workers, health visitors and so on) are seen as conspiring, lying and acting with motives of personal gain or promotion. There would be surrounding such a child a sense of the morality of ‘whistleblowing’ in respect of persons with whom one has no particular relationship or connection and of the appropriateness of setting oneself up as a sort of guardian of public probity. There would be an absence of inhibition in expressing hurtful views about others, for example that another person is an ‘obese dwarf’. (Both children incidentally have issues with eating). This lack of normal inhibition and of empathy for others would be harmful to an impressionable child, all the more so given Professor Mortimer’s prognosis that the likely prognosis of the father’s mental health is downhill.

 

 

Very sad situation.  Towards the end of the judgment, the Judge provides a summary of the matters contained within the father’s Supplementary bundles, and they are a sad insight into how consumed he had become by these beliefs.

 

 

 

Speeding up of adoptions – a counterpoint to the political direction of travel

 

 

It has been a hot theme on the blog ever since I started, forced (or non-consensual) adoptions.  This article is by some people whose views I have a lot of time for-  Brid Featherstone, Professor Sue White, Kate Morris, June Thoburn and Anna Gupta.

 

Although you can see from the sidebar on the piece that many of them have Labour connections, I don’t read this as purely a piece of party political polemic.  The politicising of adoption began before our current Prime Minister (though it is accelerating) and it is a clear theme of Brid and Sue’s bloody marvellous book  “Re-imagining child protection : Towards humane social work with families”   http://www.amazon.co.uk/Re-imagining-child-protection-Towards-families/dp/1447308018/ref=sr_1_1?ie=UTF8&qid=1449769831&sr=8-1&keywords=brid+featherstone   that many of the seeds of the current problems were sown in the early days of New Labour – a reduction of parents to a set of problems to be solved and the idea that parents role in society was simply to deliver parenting to children rather than remembering that they were also people.

 

This piece is well worth  a read.

 

There is one paragraph that really struck a chord, and it is a theme that comes up over and over in our discussions here.  Before I started writing the blog, it would have been really easy to dismiss all those who complained about family justice and social workers as conspiracy nuts or people who couldn’t face up to their own shortcomings and found it easier to blame a corrupt system than to accept their own part in the sad outcome.  Having spent four years now listening to their stories, there’s more to it than that.  There are people who have had genuinely dreadful experiences in the system, there are individual cases that have gone badly wrong.  That doesn’t mean that one can assume blindly that the experience for everyone is the same and that nobody gets fair treatment, but equally we shouldn’t write off those experiences as bad luck or crackpots.

 

 

With services increasingly focused on protection rather than support, families fear rather than seek professional help when struggling in adverse social circumstances. The promotion of adoption sets up an adversarial dynamic that can seriously undermine social workers’ ability to develop trusting relationships with families needing help, as distrust and suspicion permeate the system.

I’ve spent twenty years working with social workers – sometimes on the same team, sometimes against them. I’ve seen good ones, great ones, mediocre ones, a few downright bad ones,  new and terrified ones, jaded and stressed ones, ones that went the extra mile,  ones that had a bad day and made a mistake, ones that pulled something amazing out of a family situation that looked hopeless, ones that were cold, ones who shouldn’t have been doing the job. I really haven’t seen ones who came into the career to make people frightened of them.  We have to look at the system, if that’s the dynamic that is existing between social workers and parents – because social workers by and large come into the job to help people, that’s what they want to do. But that’s certainly not the public perception, and it isn’t the practical experience of many people who share their stories with me.

 

Can something be done to lessen or remove this adversarial dynamic, because it isn’t good for anyone involved.  It stresses parents, it makes social workers miserable and it inhibits children from getting the improvements or help or support that might be needed.

 

https://theconversation.com/by-rushing-to-speed-up-forced-adoptions-we-are-letting-children-down-51609

 

 

 

 

Foster to adopt – two small but significant issues

 

As Foster to Adopt placements  (where a child is placed with foster carers who are also approved as adopters and might go on to adopt the child if the Court decides to make a Placement Order) become more prevalent, both as a result of the Children and Families Act 2014 and the political drive to have more such placements, this particular case resolves two issues that might be significant in the future.

 

Or at least, flags up what I’d consider to be the correct answer in law and we await a decision from the High Court or Court of Appeal in the future to definitively confirm it, as this is a case determined by a Circuit Judge and thus not binding on future cases.

 

[It is very well reasoned though, and I’d be rather surprised if a higher Court were to disagree. ]

 

Re B (A child :adoption) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B182.html

 

Question 1 – when is the child “placed” for adoption?

 

There are three possible answers generally – when the Match is made (i.e  an Adoption Panel agrees that little Richard Starkey can be adopted by Mr and Mrs Ringo), or, when Richard first meets Mr and Mrs Ringo, or when the child moves into the home of prospective adopters when a Placement Order has been made. The Courts spent quite some time wrangling about that, finally deciding in Coventry City Council v O (Adoption) [2011] 2 FLR 936  that “placed for adoption” began once Richard begins to live with Mr and Mrs Ringo  (in a practical sense, on the first night that he stays with them with no plan for him to be collected by the Local Authority from then on)

 

But with Foster to Adopt children, the move into the home can come much earlier than the Placement Order.  The child is already living with the prospective adopters.  Why is this relevant? Well, because “placement” with prospective adopters can limit the parents, who cannot for example make an application to revoke a Placement Order once the child is “placed” with prospective adopters, and have to wait until an Adoption Order application is made by the prospective adopters.

 

The Judge here, His Honour Judge Booth, confirmed that the child is not “placed with adopters” until the child is in a position to be adopted (a Placement Order made) and the match is approved AND the child is living with the adopters. So in a Foster to Adopt placement, the “placed with adopters” begins as soon as the Adoption Panel and Agency Decision Maker have approved that Mr and Mrs Ringo are to be the adoptive carers of Richard.

 

  1. The July 2014 statutory guidance for Early Permanence emphasises that the status of Section 22C(9B(c) placements changes when the court has made a placement order and the ADM has approved the adoptive placement:

    “Section 22C(9B)(c) placements are foster placements: the carers must be approved foster carers as well as approved prospective adopters before the child can be placed with them. The carers are entitled to the fostering allowances that the fostering provider would normally pay. When the local authority receives a placement order or parental consent and the ADM has approved the adoptive placement, the section 22C(9B)(c) placement will become an adoptive placement. At that point the carers will become eligible for adoption pay and leave and the fostering allowance ceases”.

  2. The local authority acting in its role as an adoption agency re-approved Mr and Mrs X as Lancashire County Council adopters on 6th May 2015 and they were linked as B’s prospective adopters at an Adoption Panel on 13th May 2015. The ADM approved the decision of the panel on 22nd May 2015. It was on this date, when the third and final stage identified by Thorpe LJ in Re S was accomplished and therefore B was placed for adoption. To employ Lord Wilson’s language in Coventry v O, 22nd May 2015 was the date when the adoption agency formally allowed B “to continue to live with the applicants in their fresh capacity as prospective adopters”.
  3. From the time the placement order was made on 31st March 2015 until B was placed for adoption with Mr and Mrs X there was an opportunity for his parents or anybody else to apply for leave to seek revocation of the placement order. That opportunity ended when B was placed for adoption by the decision of the ADM on 22nd May 2015. Such is the effect of section 24 (5)(b) of the Adoption and Children Act 2002. The closure of that opportunity is by operation of law rather than any physical movement of the child.

 

Thus, the window of opportunity for a parent to apply to revoke the Placement Order is limited to the period between the making of the Placement Order and the Agency Decision Maker (ADM) approving the match. In this case, that was between 31st March and 22nd May. About eight weeks. Bearing in mind that the test for granting leave to apply to revoke a Placement Order is that the parent must show a “change in circumstances” since the Placement Order was made, that’s not much time to bring about such a change.

 

Question 2  – for the purposes of making an application under the Adoption and Children Act 2002, when does the child start to “have his home” with the prospective adopters?

 

This is significant because the prospective adopters can’t make their application until the child has been in their home for ten weeks. Does that ten weeks start from the time that the child was “placed” as above? Or from when the child was actually physically living with them?  If the latter, then Foster to Adopt carers can technically make their application almost immediately after the match if they so desire.

 

The Judge  ruled that it is the latter. That ten week period can start to run from the moment that Richard begins to live with Mr and Mrs Ringo, and doesn’t have to wait until he is “placed” there.  So Foster to Adopt carers can lodge their adoption application seconds after the ADM approves the match and “places” the child, if they so wish.

 

  1. The adoption application
  2. The Adoption and Children Act 2002 sets out a number of adoption gateway requirements in s42 before an adoption order can be made. The relevant section for the purposes of Mr and Mrs X’s application is s.42(2) which states:

    “If —

    (a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or

    (b) the applicant is a parent of the child

    the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.”

  3. B was ‘placed’ for the purposes of adoption on 22nd May 2015. The wording of the statute appears to deliberately avoid the terminology of a child being ‘placed’ when referring to the period of time that a child is required to live with the applicants prior to an application for an adoption order. Instead, the statute requires that the child “must have had his home” with the applicant(s) for 10 weeks preceding the application.
  4. There is no definition of ‘home’ in the Children Act 1989 or the Adoption and Children Act 2002, however it is clear from the observations of Sheldon J in Re Y (Minors) (Adoption: Jurisdiction) [1985] Fam 136, [1986] 1 FLR 152 at 140 and 157 that it has been considered to be a concept incapable of precise definition and that definition should not be attempted beyond the principal features a home should be expected to embody which, by reference to the OED definition, includes a “dwelling-place, house, abode; fixed residence of a family or household”. The Court in that case considered that the issue of whether something amounted to a home “must be a question of fact in any particular case”.
  5. This was endorsed more recently in the case of ECC v M and Others [2008] EWHC 332 (Fam) where Black J said at para [67]

    “I am entirely in agreement with Sheldon J that it is a question of fact in any particular case whether or not a home has been established here within the meaning of the 2002 Act”.

  6. My conclusion is that the time spent by B with the Mr and Mrs X amounts to him having had his home with them for the duration of the period he has lived with them. He has resided there continuously since 2nd December 2014 and they undertake all of his caring tasks. I am told that they have attached to him as their potential adoptive son and he has been treated as such within the immediate and wider family and that B identifies them as his primary attachment figures. They have acted as his parents since he was a day old and he has had his home with them since that date.
  7. There is no restriction in either statute or case law to the effect that the child cannot have their home with the Applicant prior to a placement order or, indeed, prior to his being ‘placed’ with the applicants for the purposes of adoption. For these purposes the clock began ticking in that respect from the moment B was physically placed with them on 2nd December 2014.
  8. This interpretation is consistent with the spirit of the Act and what it was intended to achieve in relation to adoptive placements prior to adoption orders being applied for. The purpose of the requirements set out in s.42 has been the subject of judicial consideration in Re A (Adoption: Removal) [2009] EWCA Civ 41, [2009] 2 FLR 597 when Moore-Bick LJ said at para 106:

    “The section … is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the Court to be satisfied they are sufficiently well-matched for the adoption to be likely to be successful”.

  9. This was endorsed by Theis J in Re X (Adoption Application: Gateway Requirements) [2014] 1 FLR 1281 at para [33].
  10. The question of where a child has had his home is a question of fact independent from his legal status within that home.

 

The very purpose of Foster to Adopt is to ensure that in cases where the Court approve adoption as the plan that there are shorter delays in the adoption order being made, and less moves for the child, so it does make sense that such carers are allowed to take the ten weeks as being the time that the child has been in their care, rather than making them wait for ten weeks after the match is formally approved.

 

Of course from the other side of the coin, and remembering that a parent needs to show that there has been a Change of Circumstances since the Placement Order was made if they are going to get leave to oppose the adoption order application, realising that there might be a very short window – more likely weeks than months between the Placement Order and adoption order application might make it virtually impossible to effect such change.

Court of Appeal – section 20 abuse

 

There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.

 

Here it is:-

 

Re N (Children: Adoption : Jurisdiction) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html

 

As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.

 

This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’

 

There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.

 

So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it  http://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/)

 

This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)

 

  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

 

The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.

 

The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.

 

As the President says here

 

para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

 

and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)

 

I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).

 

The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-

 

(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead

 

  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]

 

So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

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