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Category Archives: adoption

Being late to the party (turns out Auntie Beryl was Grandma Beryl…)

 

KS v Neath Port Talbot 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/941.html

 

This was an appeal by the grandmother who was refused her application to be joined as a party to care proceedings, which resulted in Placement Orders. She put herself forward in a formal application five days before the final hearing.

 

The Judge arrived at a sort of half-way house, refusing party status for the grandmother, but allowing her to be in Court, to give evidence and to ask the father’s representatives to put questions on her behalf. This unusual position was not helped by the Judge believing when judgment was delivered that the grandmother’s primary application had been dismissed by the Judge on day one of the final hearing (it hadn’t, it had been adjourned for decision until the end of the case)

 

 

 

  • Some five days before, on 9 October 2013, the child’s paternal grandmother had made a formal application to be made a party to the proceedings and for an expert assessment concerning her capability to care for the child. The application was adjourned at the beginning of the hearing and refused at the end. The effect of the adjournment was, however, to refuse the grandmother party status for the hearing that was taking place. Despite this, the judge permitted the grandmother to remain in court during the hearing and to give oral evidence. He records in his judgment that the grandmother:

 

 

“… opposes the applications and has played a part in these proceedings in as much as she has given evidence and has put herself forward as a potential carer for her grandchild”

 

  • There was a real issue before this court about what the judge intended to decide by his case management ruling. Although it is clear from the words he used that he adjourned the grandmother’s application until the end of the hearing on the merits, when he refused it, he later recollected (erroneously) that he had refused her application at the beginning of the hearing. Furthermore, although he failed to grant to the grandmother some important due process protections that a party would have, in particular notice of the issues in the case and knowledge of the evidence filed relating to those issues, he afforded the grandmother a partial opportunity to participate in a hearing which decided those issues.

 

 

The trial judge’s determination of the grandmother’s case was fairly short, and viewed criticially by the Court of Appeal

 

 

  • The terms in which the judge dealt with the grandmother’s application at the beginning of the hearing are as follows:

 

 

“This is an application for leave to make an application under section 8 of the Children Act. I bear in mind that this is a very late application and I bear in mind the Family Proceedings (sic) Rules and the overriding principle that I have just referred to. Although this is a late application, it has the potential for disruption not only of these proceedings but the interests of this child.

I am not going to shut the grandmother out of these proceedings at this stage. She can stay and hear the evidence, she can stay during all the proceedings, she can find her seat comfortably with other parties and she will be able to give evidence and through the solicitor for the father she can cross examine the author of the assessment that was made of her which was negative. I, therefore, adjourn her application to a stage in the proceedings after all the evidence has been completed. I do so in balancing the fairness to all the parties here and to the child.

There will be no ostensible delay of these proceedings by doing this, I allow her interests at least to be considered and for her to hear all the evidence as it potentially may interest the third party.”

 

  • At the end of the hearing the judge refused the application for five reasons that involved no analysis of the evidence, no analysis of the content of the assessment of the grandmother or the potential merits of her case, as follows:

 

 

i) the late nature of the application and the delay that an additional expert would occasion;

ii) the nature of the grandmother’s proposed application, namely for a residence order which the judge described as lacking in detail;

iii) the limited connection with the child: the judge accepted that there was an emotional attachment but erroneously described the continuous and significant contact arrangements as being “some ad hoc inter-familial arrangement for contact”;

iv) the real disruption that the application would cause to decision making about the child’s immediate future; and

v) the fact that the grandmother did “not fall within the remit of the local authority’s plans”.

 

  • As to the merits of the grandmother’s case, the judge was brief. The analysis in his full judgment was limited to the following words:

 

 

“The original assessment of the grandmother on 12th July of 2012 was negative. There is scope to believe that things have not so fundamentally changed that that report should stand to be considered as being valid. Any contribution as sought by the grandmother would require considerable analysis of the family dynamics, including of course an exploration of the father’s upbringing which itself has been the subject of various explanations, and also the management of contact. That was the view of the Guardian and I accept it. There is no merit in the application for the grandmother to care for the child. I appreciate that she may well have a kind heart and show commendable maturity as a grandparent herself in conceding that the time is now right for a decision to be made in respect of [the child].”

 

 

On the other side of the coin was the grandmother’s case, and the Court of Appeal felt that she had a better case than the Judge had recognised

 

 

  • The grandmother’s case was that she has a meaningful connection with the child who had regular contact including staying contact with her. That contact had existed before the child’s placement with the great grandparents, had continued after that placement had ended and was still taking place during the proceedings on a twice weekly basis. In addition, the July 2012 assessment acknowledged that the paternal grandmother and her husband displayed genuine emotion for and were clearly concerned about the child’s future. They were assessed as being fully aware of the local authority’s concerns about the parents and the child’s care needs. There was a significant attachment between the child and her grandparents that would be severed by the adoptive plan. By the time of the final hearing, the child’s parents supported the grandmother’s application.

 

 

 

  • The assessment also described the manifestly good care that was provided by the grandparents for a 14 year old boy and a 12 year old girl within what was evidently a long term stable relationship. There were no concerns about their parenting abilities in respect of these children and there had been no involvement of children’s services.

 

 

 

  • The local authority response to this court about the merits of the grandmother’s case was that the positives in the assessment were outweighed by the negatives which included the paternal grandmother’s partner having significant mobility problems such that he might not be able to assist with his granddaughter’s care. There were also fears about the impact the parents might have in undermining a placement with the grandparents, the appropriateness of the grandparents’ accommodation and the grandparents’ commitment to the children already cared for by them and whether that would be compromised by another child in the household.

 

 

 

  • In my judgment, the analysis of the negatives in the local authority’s evidence and by the guardian did not exclude the grandparents as a realistic option. To put it another way, the grandparents’ prima facie case on paper was stronger than that of the local authority relating to them. It is difficult to conclude other than that the grandparents’ case was arguable on any basis. It went to the critical proportionality evaluation of whether ‘nothing else would do’ than adoption. The grandmother’s application accordingly demanded rigorous scrutiny of the factors set out in section 10(9) of the Children Act 1989 in the context of the reasons for the late application.

 

 

Decision

 

  • The paternal grandmother submits and I agree that the case management decision that the judge made was plainly wrong because it was procedurally unfair. If, by his case management decision, it was the judge’s intention to exclude the grandparents from the care of the child, then he did not have regard to evidence relating to the section 10(9) factors or to the potential merits of her case which he would have found in the content of the assessment to which I have referred. His reasons lacked sufficient or any analysis. Case management decisions that have the character of deciding a substantive issue must be treated with particular care: hence the nature and extent of the enquiry that is made necessary by section 10(9) of the Act and its associated case law.

 

 

 

 

 

  • The purpose of section 10(9) of the 1989 Act and the case law that supports it is defeated if there is no analysis of the benefits and detriments inherent in the application and the arguability of the case. The section provides a framework for decisions of this kind to be made so that there is an appropriate balance between case management principles and the substantive issues in the proceedings. Furthermore, the lack of attention to detail and in particular the lack of analysis of what had been happening during the proceedings in particular as between the local authority and the grandmother and the child, including the timetable for the child and for the proceedings, deprived the decision of the character of individual and collective proportionality that application of the overriding objective would have provided. In simple terms, the decision was too superficial and un-reasoned to stand scrutiny.

 

 

 

  • If it was the judge’s intention to consider or re-consider the grandmother’s case at the end of the evidence, in what would then have been an holistic overview of the options to which a welfare analysis and proportionality evaluation were applied, then he failed to put in place any procedural protections for a person whose case was distinct from the other parties. In particular, his decision at the beginning of the hearing had the effect of refusing to make the grandmother a party, thereby denying her access to the documents so that she could challenge matters relating to her own case and condemned her to giving evidence without knowledge of the relevant evidence in the case. The essential due process protections of notice of the issues and an opportunity to challenge evidence relating to those issues was missing and in my judgment that was also procedurally unfair.

 

 

 

  • By reason of the manner in which the case management decision was made, the evidence relating to whether grandmother was a realistic option was not identified and tested. It was neither tested by reference to applicable case management principles nor substantively as one of the options in the case about which the court was hearing evidence with the usual due process protections. The judge allowed the issues raised by the grandmother to fall between two stools. That was plainly wrong and as a consequence the process was procedurally unfair.

 

 

 

  • At the end of the hearing, the case management decision made by the judge was re-iterated as a substantive decision to exclude the grandparents from the care of their granddaughter. Whether or not the grandmother as a non-party to that decision has the locus to challenge that aspect of the case, the mother does. She submits that as an exercise of value judgment it was wrong and in any event the judge failed to conduct a non linear, holistic welfare analysis and proportionality evaluation of all of the care and placement options and that was an error of law. The judge did not reason why the grandparents were to be excluded, there is no comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation is entirely missing from the judgment. Further and better reasons of the judgment were requested but they do not assist in any of these respects. That has the effect that there is no consideration in judgment of the effect on the child of breaking family ties, in particular her attachment to her grandparents and whether nothing else would do other than adoption.

 

 

 

  • In summary, the grandmother supported by the mother submit that the judge failed to address that which is required by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 in analysing whether ‘nothing else will do’ and the subsequent Court of Appeal cases of Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146. I agree. There was no overt analysis of the child’s welfare throughout her life nor the likely effect on her of having ceased to be a member of her original family in accordance with section 1(2) and 1(4)(c) of the 2002 Act. The distinctions between the factors in the welfare checklists in the 1989 Act and the 2002 Act were not explored. The essence of the recent case law and of the statutory tests was not sufficiently demonstrated.

 

 

 

  • The local authority concede that the judge’s approach to the welfare analysis and proportionality evaluation was not in accordance with the authorities. Their case rests on the ability to exclude the grandmother from that exercise. That would have involved an analysis by the judge of the timetable for the child and the timetable for the proceedings as part of the overriding objective, the section 10(9) factors and the arguability of the grandmother’s case. That analysis was missing with the consequence that neither the grandmother’s case nor the local authority’s case was properly considered during case management and the grandmother’s case was not considered on the merits. It is fortunate that the child’s interests can be protected by an expedited re-hearing before the Designated Family Judge for Swansea.

 

This does seem to be the right decision for the child, but it raises real questions about the 26 week timetable.  It has been a long-standing question as to what the Court of Appeal would do with a Judge that refused in an adoption case to allow a delay to assess a relative who came forward last minute, and now we know. If the Judge is robust and looking at the new wording of the Act and the principles of the Act in relation to delay and achieving finality, they run the risk of being successfully appealed.

 

There’s another Court of Appeal decision forthcoming which does much the same in relation to giving a parent more time to demonstrate the ability to provide good enough care (even when the proceedings had reached 64 weeks http://www.bailii.org/ew/cases/EWCA/Civ/2014/991.html  ), so the message here is somewhat muddled.

In speeches, it is 26 weeks can happen, it must happen, it will happen.

 

In the cases that hit the Court of Appeal it seems to me more – 26 weeks can happen, it must happen, it will happen – but to those other cases, not the ones we’re looking at.

So can a Judge who delivers that sort of robust judgment, refusing delay, be confident that the Court of Appeal will back them?  That’s exactly what happened with the ‘robust case management’ that was supposed to be the underpinning of the Protocol and PLO Mark One.  If the Court of Appeal aren’t really behind the 26 weeks, and the appeal process takes forever (as presently), then won’ t Judges cut out the middle man, save time and just allow the adjournment requested knowing that the Court of Appeal will probably grant it eventually anyway?

 

 

*To be scrupulously fair, this Court of Appeal decision, though only now released, was decided in March BEFORE the Children and Families Act 2014 came into force. But hardly in ignorance of the culture, and the main judgment was delivered by Ryder LJ, a major architect of the revised PLO.

 

Jude the Apostle versus Sybil Fawlty

The Court of Appeal decision in Re T (a child) 2014

http://www.familylawweek.co.uk/site.aspx?i=ed130924

 

 

Jude the Apostle is of course, the patron saint of lost causes, and Sybil Fawlty (wife to Basil) had as her Mastermind Specialist Subject “The bleeding obvious”. This was an utterly hopeless case, that succeeded on appeal.

 

The original decision in Re T was that a child, who was 6 months old at the time (and is now 18 months old), should be subject to a Care Order and Placement Order. The parents, at that time, were two months into prison sentences; as a result of a drunken incident involving wounding and ABH. The mother had been given a five year prison sentence, and the father a two year prison sentence.

 

The Judge, decided that neither parent was in a position to care for the child and that the child could not wait for them to be able to do so.

 

This is what the trial judge had to say about the various options (this being a judgment given in July 2013 – at around the time that the huge volumes of new case law were emerging like lava from the Court of Appeal)

 

“There are no other family members who are ready, willing or able to look after M, and, in the enforced absence of the parents, there is simply no realistic alternative to the local authority’s plan, supported as it is, I should say, by the children’s guardian. I am afraid that the parents’ case is unrealistic and it is uncertain. It inevitably involves delay and M would have to be kept waiting on the possibility that a combination of circumstances might somehow come about whereby at the age of approaching three he could be brought up at home by his parents. I am satisfied that the local authority’s intervention was necessary, was unavoidable, because there simply was no alternative and its plan for M is in the circumstances proportionate. The threshold is manifestly crossed. A care order is the only order that will safeguard and promote M’s well being, and approving of the care plan as one of adoption I dispense with the consent of the mother and the father on the basis that M’s welfare requires me so to do, and that will enable a search to begin for an adoptive placement. So I make orders as asked and those are my reasons for doing so.”

 

 

It obviously isn’t a Re B-S analysis, but for goodness sake, the parents were just beginning prison sentences. What value is there in setting out the manifold benefits of the child being placed with mother when she was going to be locked up for the next 2 ½ years of this child’s life? What’s the point in weighing up whether the child can wait for the sentence to be finished when the Government has decided that cases should be finished in 26 weeks?

 

Well, the Court of Appeal didn’t see it that way.

 

18. The judge dwells upon, rightly, the choppy water that would be encountered by M over the coming months and probably year or so were he to have to wait for his parents to complete their prison sentences and be assessed and be seen to be able to provide full, stable, secure care for him in the community. All of those negatives were rightly in the judge’s mind. He also had the positives of the potential for the parents to care. He also, as Ms Anna Fox, counsel for the guardian before us has indicated, had in mind the “elephant in the room” as she referred to it. That is a reference to the fact that the case was not actually about the potential for the parents to deliver day to day to care to their baby; it was about whether they could by relied upon to live quietly, soberly, safely, boringly, in the community with him and not engage in volatile, unpredictable, highly violent, behaviour in the future and lay themselves open not only to injury but also to the potential of being taken out of the community and once more returned to prison. And the judge was aware of that aspect of the case.

 

19. But nowhere at all in the judgment does the judge look at adoption as an option for the child. Plainly at this age, M would have been said to be readily adoptable, and we are told that after the hearing the local authority were able to identify a match for him and the case was ready to go to an adoption panel meeting to approve that match in January 2014. But the big issue in the case was whether life with the parents was going to be so detrimental, so harmful, that it was necessary to remove him from all of that; remove him from any ongoing relationship with his parents and with his kith and kin. At no stage, it seems to me, does the judge indicate in what he says that he has grappled with that. He does use the phrase that he is satisfied that the local authority’s intervention was “necessary, was unavoidable, … and that there was no alternative”. And he indicates that the plan was “proportionate”. But those are labels and are only going to indicate that the judge actually has grappled with the factual circumstances that underlie them if he has demonstrated, at least shortly in these pre Re B S days, that he has in fact undertaken that exercise.

 

20. I am not satisfied that he has and I am of the view that, because of the words he uses, he failed to undertake the necessary balancing exercise on this occasion. The result therefore is in my view that the appeal has to succeed and that the order should be set aside.

 

 

 

It begins to feel to me that we lawyers are riding a horse where someone else is holding the reins, and that the people holding the reins are steering in two different directions. On the one hand, the Act is telling us that cases should be concluded in 26 weeks and that delay is bad for children, and on the other that a Judge is actually supposed to genuinely contemplate that a 6 month old baby should wait for his parents to come out of a prison sentence that they have only just begun. [This sensation is exacerbated by the Court of Appeal decision on s32(5) adjournments which I’ve read today and which should be made public soon]

 

 

The Court of Appeal do express some concern about the fact that this appeal took A YEAR to resolve. A YEAR. Two thirds of this child’s life have been in limbo.

 

And why is that?   (If you work for a Local Authority, you are about to guess that the Court of Appeal is going to (a) blame the LA and (b) impose some new chore/expense on us, and you are right)

 

22. Before leaving this judgment I wish to say something, albeit briefly, about the appalling delay that has been visited upon this case between the notice of appeal being issued on 14 October 2013 and this hearing coming on before us on 4 June 2014. There are difficulties in the system as a whole in obtaining transcripts of judgments. It is, I suspect, obvious that for any appellant process to be effective, the judges of the Court of Appeal, and indeed if they are circuit judges hearing appeals from lower courts, can only function by having an accurate record of what was said in the judgment of the lower court. It is impossible even, in my view, to evaluate whether permission to appeal should be given without an accurate note, if not a full transcript, of what took place.

 

23. Delay is all too often encountered in cases across the board for the civil division of the Court of Appeal. In a case involving the welfare of children, particularly a baby such as M, who is facing either carrying on on the road towards adoption if the order is upheld or being the subject of a different course of action, any delay, even if it is measured as a matter of weeks or a month, is to be avoided.

 

24. In the current climate, where the entirety of a care case is now, as a matter of statute law, to be undertaken from beginning to end in 26 weeks, an appeal process which lasts 10 months, is plainly entirely contrary to the interests of the child let alone the other parties and the system.

 

25. I have enquired about what occurred or did not occur in the present case, and a problem seems to be that this mother is a litigant in person, and she is not to be criticised for this, was sent a form requiring her to apply for a transcript of the judgment to be provided at public expense. She, for whatever reason, either did not receive the form or did not return to promptly, or did not understand its significance. A chasing letter was sent to her in December 2013 and the transcript was only ordered by the Court of Appeal office on 22 January 2014 (3 months after the appeal was lodged).

 

26. The facts of this case are stark. They are outside the ordinary: the mother, a litigant in person, was serving a 5 year prison sentence. It is to my eyes obvious that she would require public funding to pay for the provision of a transcript. In any event, in the ordinary course of a case where a litigant in person is at liberty, the need to process that request has to be given the upmost priority. Where a local authority, as here is the case, have a pressing interest in the appeal process being resolved one way or the other promptly, there is an argument for the local authority being asked to consider paying for the transcript of the judgment. In this case, months and months went by before the court eventually received a transcript which runs to three pages. The local authority would have known that it was a very short judgment and the whole delay in this particular case might have been avoided by an early pragmatic step such as the one I have described. Thereafter, following the request for the transcript in January 2014, the transcript was not received until 1 April 2014 (a further delay therefore of 10 weeks). It seems that delay on the account I have been given, without having had any recourse to an account from the local county court, occurred because of difficulties in communicating with the local county court and obtaining their cooperation in obtaining the transcript. It is a sorry story but, more than that, it is totally unacceptable, and I am going to invite those responsible for the system here and, at local level, the designated family judges to do all that they can to ensure that transcripts of judgments in cases such as these are obtained with the utmost speed so that a view can be taken promptly on the merits of any potential appeal.

 

27. But with those remarks, as it were, on the side, in my view, the outcome of this appeal is that the appeal must be allowed and the placement order should be set aside. Nobody seeks to appeal the final care order in this case. The matter will have to be remitted to a circuit judge at Liverpool County Court other than HHJ Dodds. For my part, I would invite the parties, if my Lords agree that this is the outcome of the case, to spend some short time now at court this morning drawing up a tight timetable for the steps that now need to be taken before the case can come for a case management hearing before the new judge at the earliest opportunity, either in next week or very early in the following week.

 

 

 

You will remember that the Court of Appeal have already decided that Local Authorities have to prepare a bundle in appeal cases that they did not bring, to save litigants in person doing it, and now it is their job to obtain and pay for a transcript as well.

 

Go on then, appeal me, I dare you

 

The trial judge in Re P (A child) 2014 doesn’t QUITE say what I say in the title above, but it isn’t far off.

 

http://www.familylawweek.co.uk/site.aspx?i=ed130704

 

“If you do not like it, there is always the Court of Appeal.  Good luck.”

 

The Court of Appeal, reading that sort of thing in a transcript, don’t like it. It is rather akin to telling the heavily refreshed man with the tattoos on his neck that, yes, I AM looking at your bird.

 

How on earth did the Judge come to say that? Was it a truly outrageous application? Well, not really. It was the parents in a case suggesting that the grandparents who lived in Poland ought to be assessed. (And yes, that’s Poland, not darkest Peru or a remote part of the Arctic circle)

“MR SEFTON: Your Honour, we have raised with the Local Authority as well as other family members putting themselves forward.  The paternal and maternal grandparents have put  

THE JUDGE:  Whereabouts are they?

MR SEFTON: They are based in Poland.

THE JUDGE: Yes.  There are certain practical difficulties here.

MR SEFTON: Of course, there are practical difficulties.

THE JUDGE: Because, as in the next case,    the parallels are remarkable    without giving you any details, the next family are not from this country, the father has vanished very conveniently and the mother is saying, “He did it.  I did not.  Let me have my children back” and it might be that they are on the next bus to whether it is Paris, Berlin, Rome, whichever country they are from, where, miraculously, the father will spring up.  So England will not wash its hands of children who are here.  The applies to this child as well as in the next case.  That is one huge difficulty about considering family members who are natives of and residents in Poland.  If you do not like it, there is always the Court of Appeal.  Good luck.”

“MS ROBINSON: Your honour, clearly, a lot of work is going to have to be done in terms of the timetabling of this matter.  However, with regards to the extended family members, the Guardian is anxious that there is at least some enquiry made of them because this little girl is Polish and there are going to be significant cultural considerations that have to be borne in mind by this court.  I understand that both sets of grandparents are due to visit this country over the course of the next few weeks and the Guardian would like for both sets to at least be spoken to and for some enquiries to be made.  I also understand that there was a direction made by you earlier in these proceedings with regards to information from Polish Social Services regarding the father’s elder child and that information has, as yet, not been made available.  Again, I would ask that that is chased and that that information is available as soon as applicable.

THE JUDGE: Yes.

MS ROBINSON: I do not think there is anything more that I can add at this stage.

THE JUDGE: I am sure what I was saying to Mr Sefton is not lost on you, Ms Robinson, but the Children’s Guardian must not think that the panaceatic remedy will be the unimpeachable grandparents from Poland.  Poland is one short hop away from Merseyside and I very much doubt that I will be entertaining that as a solution should I come to the conclusion that this injury was non accidental, that it was perpetrated by one or both of the parents, that the other failed to protect or is lying through his or her teeth and in circumstances whereby it is not safe to reunite the family.  If it is not safe in this country, it would not be safe in Poland.  So, if anybody has the notion that the solution is rehabilitation to a member of the extended family in Poland, I would not share that sentiment in those circumstances.  There we are.

MS ROBINSON: But your honour would not be opposed to the Local Authority making enquiries of the grandparents when they are in this country in terms of  

THE JUDGE: No, but what I am saying is, and I direct my remarks to Ms Williams as I do to you, this is a game of chess, not draughts.  Any fool can play draughts and move one step at a time.  It takes rather more skill to play chess where you have to think several moves ahead.  That is what I am saying.  If it sounds like a crude exposition, then I apologise but that is what I have in mind.”

 

It is not a huge shock that with that sort of expressed view, the grandparents did not pursue their claim. It ought to have been appealed there and then, but wasn’t. By way of context, this exchange came after the Supreme Court’s decision in Re B  (nothing else will do)

 

There follows a lovely bit, which is almost something out of Allo Allo

 

Finally in this context, we have the submissions by Ms Bannon on behalf of the children’s guardian.  I quote from her skeleton.  Referring to the July hearing, Ms Bannon says this:

“The judge made it clear to all that rehabilitation of the child to Poland was not an option and this set the backdrop against which all placement options were considered.”

39. Now, that description of the guardian’s position is, we are told, a surprise to the social workers.  Equally, Ms Bannon tells us that the social workers’ surprise at what she has said is also a surprise to the guardian. 

 

The Court went on at a later final hearing to make a Placement Order, and the parents appealed that.

 

It is no huge shock that the Court of Appeal felt that the Judge had got it wrong in not exploring the possibility that the child could be placed with relatives in Poland. A consequence of that was that these proceedings, which could have been concluded in September last year, had an assessment been done, is still going on.

 

The Court of Appeal had this to say about when robust case management crosses the line
56. I cannot, however, leave this case without expressing my disappointment with the turn of events at the hearing on 26 July 2013.  There are many pressures in various fields of litigation, none perhaps more so that in family proceedings, for speed and efficient use of resources.  However, there are proper limits to robust case management. 

57. In my judgment, it is regrettably all too clear from the transcript that we have seen of the hearing on that day that, unfortunately, this judge appears to have closed his mind to any solution for this child’s future in Poland.  My Lord has referred to the relevant passages of the transcript.  There is a distinction properly to be drawn between case management and premature jumping to conclusions.  Unfortunately, it seems to me that the judge’s conduct of the hearing on 26 July fell very much on the wrong side of that line.

 

and

 

I accept Mr Downs’ submission that “The reality is that two willing sets of grandparents were overlooked because the judge set his face against a placement out of England and Wales”.

60. The local authority submits that the social workers thought that the option had not been closed out, but if that is what they thought, then it appears they made no efforts to find out whether there was any possibility of a placement within the wider family in Poland.  Nor does it appear from the evidence that they asked what should have been an obvious question: why was the maternal grandmother was proposing to come and live in Warrington on her own in order to be the carer for the child?  What was to happen about all her other family commitments in Poland and how long was she proposing to stay?

61. In making these points, I am impressed by the fact that the guardian’s solicitor, Miss Robinson, pressed the judge at the hearing in July to no avail, that the guardian herself was present at that hearing and that she formed the view that the judge had closed out the option.  At the very least, it suggests that Mr Downs’ interpretation was not an unreasonable one. 

62. I do appreciate that the local authority have great burdens put upon them, but they are, as Mr Downs submits, subject to a positive obligation under Article 8 to consider ways of retaining a child within the family.  That positive duty is owed also by the court.  Mr Downs has not cited any authority, but the principle is well known.  It is reflected in the decision of the Grand Chamber of the European Court of Human Rights in TP and KM v the United Kingdom (Application No. 28945/95).  I sat as the UK ad hoc judge on this case. 

63. At paragraph 71 of its judgment, and in the context of Article 8 and the margin of appreciation in relation to a local authority’s duty to disclose relevant information to the parent of a child who had been taken into care, the Grand Chamber held:

“71.  The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.  Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996 III, p. 1003, § 64).”

64. The judge’s observations give insufficient weight to the Convention jurisprudence.  Judges have to be very careful in the way in which they express themselves.  So if what they are really intending to do is to express a provisional view only to help the parties, they have to underscore, underline and make it clear that it is a provisional view only.

65. This case still has a very long way to go, sadly, before a permanent decision is made about the child’s future care and no one is predicting what that decision will be.

 

Succeeding in an opposed adoption

 

 
There are cases – you can see them in law reports, read about them in the newspapers and sometimes see them for yourself, when a Local Authority seeks a Placement Order with a plan to adopt a child and the Court says no. {Just looking at the Bailii reports of county court cases since 22nd April, I can find three of those}

You can also see cases where the first Court says yes, and the Court of Appeal say no, and the Placement Order and the plan of adoption is stymied. So parents can and do, successfully fight PLANS for adoption.

 

What about when the plan is approved and the Court makes the Placement Order that allows the child to be placed with prospective adopters?

Once the Placement Order is made, a parent can apply for leave to revoke the Placement Order – to get the child back if the application to revoke is successful.

Since the Adoption and Children Act 2002, I have not personally experienced a successful application for revocation of a placement order by a parent, nor have I ever read about one in a newspaper. Nor have I been able to find one in the law reports. I have found some cases where LEAVE was given, but not any that ultimately ended up with the child coming home.

If the child is placed with prospective adopters, and they make an application for adoption, the parent may apply for leave to oppose the adoption application. Up until Re B-S was decided last year, the only reported case where that leave had been given to a parent had been immediately appealed.

That’s because pre Re B-S, the test was that the Court should follow a “stringent approach” and that it would be only in “exceptionally rare circumstances that these applications would be granted”

[That, in practice seemed to be “exceptionally rare” in the sense that a unicorn is exceptionally rare, rather than in the sense that a Cabinet minister is sacked sense of exceptionally rare]

In Re B-S though, the Court of Appeal decided that that was not on – Parliament had set out in the Adoption and Children Act 2002 that there was a remedy allowing a parent to oppose an adoption order under s47(5) of the Act, and if that was to be a real remedy rather than a merely illusory one, there had to be cases where leave would be given. The Court of Appeal decided that the mere fact that a child was placed with adopters and would be potentially unsettled was not enough to defeat a leave to oppose application, and if the parent demonstrated some ‘solidity’ to their case, it would be right to grant them leave and let them oppose the adoption.

Since then, a higher proportion of leave to oppose applications have been successful (or successful appeals after original refusals). But have any of them actually resulted in the parent getting their child back?

Since the 2002 Act, I have not found a single law report that shows a parent successfully opposing the adoption order and getting the child back. I have seen cases that could be counted on the fingers of one hand of opposition to adoption orders that resulted in the child remaining with the prospective adopters under a different form of order.

The closest anyone had come in a reported case (up until now) was in Re W (Adoption Order :Set aside and leave to oppose) 2010 [2011] 1 FLR 2153

In which a mother had not been served with the adoption application, despite telling the social workers that she wanted to fight it, and she persuaded the Court of Appeal that it was right to set aside the adoption order But the Court of Appeal then went on to decide that she failed in her application for leave to oppose, and that there would thus be an unopposed application for adoption, which of course would succeed. That’s about as pyrrhic a victory as one can imagine.
In fact, if you want to find the answer to the question “What happens to the child if a Court refuse the adoption application?” the case that answers it is from 1960 (which is two sets of Adoption legislation ago – the answer NOW is that the Care Order comes back into force, so unless the Court discharge the care order or make the new equivalent of a Residence Order, the adoption won’t go ahead but that doesn’t automatically mean the child will come home)
This raises two big questions for me

1. Where does that leave the Court of Appeal’s statement in Re B-S that parliament intended there to be a real remedy in s47 for a parent to fight an adoption application, rather than a merely illusory one?

AND

2. How can a parent’s opposition to an adoption order be said to have solidity, if nobody has ever succeeded in opposing one?

 

If in twelve years, no parent has successfully fought an adoption application and got their child back, is the whole concept of contested adoption really just an illusion, and moreover, an illusion that causes further pain and suffering to a parent, anxiety to the prospective adopters and takes up Court time that we can ill afford?
Those questions are thrown into sharp focus by this High Court decision that I am finally getting around to.

Borough of Poole v W and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1777.html

This judgment was delivered by Sir Mark Hedley, in the High Court in April 2014. I will say, before we begin, that if I happened to be representing a parent in the High Court, the Judge I would be praying for would have been Hedley – you cannot have a more kindly and sympathetic tribunal. It would be a dream start.

In this case, the Judge had given leave to oppose the adoption application for a child SR, and thus this is one of the rare reported contested adoption judgments.

SR was 2 ½ years old. She had been removed shortly after birth, there having been care proceedings and adoptions of her older siblings. A Care Order with a plan of adoption and Placement Order was made – the parents appealed that decision and were unsuccessful. SR was placed with prospective adopters in November 2012 and her direct contact with her parents ceased.

The adoption application was made and the parents were granted leave to oppose.

[I note in passing that the Judge refers extensively in his judgment to 2011 caselaw, but does not touch upon Re B or Re B-S – no doubt these formed a major part of his judgment to grant leave to oppose]

“Although the final legal burden on the prospective adopters remains unchanged, the parents, according to Re W have a significant evidential burden of laying solid grounds of opposition to what has already been planned and approved by the court. I mentioned at the end of the hearing that I thought, this being, I think, the first case at full trial after the bout of cases in the Court of Appeal, that it would be proper normally to provide a written judgment so that others could see how the process works out”

[There has of course been the judgment in the opposed adoption case of Re N (A Child : Adoption Order) 2014 – but in that case, the father was not seeking the return of the child but to persuade the Court to make a Special Guardianship Order instead of an adoption order http://suesspiciousminds.com/2014/05/10/special-guardianship-versus-adoption/ ]
Coming back then to the essence of this case, all parties agreed that there were probably three factual questions that the court had to ask and answer. First, would SR survive the rehabilitation process? If yes, secondly, would the parents survive the rehabilitation process? If yes, thirdly, would they produce parenting consistent with the needs of SR over the balance of her childhood? It seems to me, in a case such as this, it is always best to start by looking at things as they will appear to the child herself. All the adult analysis and debate and arcane recital of authority is wholly incomprehensible to her. The world, so far as she is concerned, looks very different. She was removed from her parents after two weeks at hospital. However, unlike the other children, she had had no adverse parental experience this being, as it were, a likelihood of harm case, rather than a harm case. From the 4th August 2011 to about the 19th November 2012 she was placed with a foster carer called Karen, to whom she clearly became securely attached over that period of time. Moreover during that time, she had what I am content to accept, was positive experience of parental contact. Her life changed dramatically on the 19th November 2012 because she had to break that secure attachment and re-form it with people who were, in effect, strangers to her. There is no doubt that she had some difficulties with that. There is no doubt they were only the kind of difficulties that anyone would have expected and there is no doubt that they were substantially overcome. As far as she is concerned, the last parental contact she had was a lifetime away and since then she has settled down and made her home and family with the prospective adopters. Her parents will perforce now be strangers to her. She has only one home and only one world and that includes, as everybody recognises it would include whatever happens to her, the extended family of those who care for her.
Looking at the change in the parents since the Placement Order had been made, these were considerable – in fact, this bit is quite remarkable – in effect their former social worker was their McKenzie Friend. That’s not something I’ve ever come across before and may never see again.
They have been assisted throughout by Mr Levers, who is a retired social worker, indeed was once social worker to this family, but that had ceased before any legal proceedings here started. He has manifestly, with his wife, been a tower of strength to the parents throughout these proceedings. He has afforded not just litigation but personal support and I am entirely satisfied that such support would continue unabated into the future, whether it is in supporting the parents in renewing their care of the child or supporting them in their grief in being deprived of the opportunity of doing that.
The changes they had made are delineated

If we come up to today’s date, everybody accepts that the parents are in a very different position indeed to the one that they were in, in July 2011 or indeed October 2012. They enrolled themselves in university courses at the Greenwich Business School at its Greenford Campus in West London. They have set up their own home in Hayes in West London, having moved up from Dorset and they have established for themselves all the appearances of a stable lifestyle in which studies are accommodated and part-time work ensures both that they have control of money and also their ability to live independently. Moreover, the mother has completed and benefitted from therapies which were designed to address the emotional dysfunction which she recognised she had. The father has clearly benefited from involvement in a domestic violence course and the very fact that he saw it through is good grounds for optimism and it has been not without its benefits to him. Both the parents are able to give an articulate and compelling account of the progress that they have made. Both parents acknowledge the need for further work if so advised, both in respect of couple counselling and in the respect of the mother for some more individual work
What then are the concerns that were raised in particular in the expert evidence about the parents? The expert evidence consisted of the clinical psychologist and an independent social worker, both of whom have provided extensive written reports and gave oral evidence at this hearing before me. Both of them acknowledge the parents have made very substantial progress since they, the experts, first dealt with them when they, the experts, were recommending the permanent removal of the older children. Both experts, in their written evidence at least, concluded that if the parents have another child, whilst an assessment may be needed, the child should not be removed from them while such an assessment took place, though it is only right to record that in this, as in pretty well every other matter of which she spoke, the psychologist became increasingly cautious as she gave oral evidence. However, said the experts, the real progress that has been made is not enough to justify attempting a rehabilitation of this child at this time. They contend that much work remains to be done. The psychologist in oral evidence, though I am not sure she had said it in her report, said that some of that work, quite a lot of it, would have to take place before a rehabilitation started. They both said that it was really impossible to assess the real risks involved in rehabilitation without there being some significant contact which could be observed and evaluated. Of course, everybody in the case accepts that contact is simply impracticable unless and until an order has been made refusing the adoption. Those of course are all matters that I must take into account. I was left with the impression, and I do not assert this because it was only an impression, that the psychologist became increasingly cautious once she realised that serious consideration was actually being given to the case that the parents were seeking to advance.

Now, there are two other matters which have been universally advanced as grounds for concern about the parents. The first of those is a failure by the parents to accept their responsibilities for what has happened in the past. Now, I am ready to accept that there is something in this concern because it is clear to me that they do not accept the full implications of Judge Bond’s judgment of the 1st July 2011. However, they have, by what they have done, shown a real awareness of deficiencies in their own parenting and personalities. They have demonstrated a serious commitment to the cause of endeavouring to improve themselves and I think I am not as troubled as others by their failure, as it were, to make unmitigated confession in respect of everything that has occurred. I am not saying there is not something in it, but the something that is in it that may be truly significant, is a failure to appreciate just how far they would have had to travel to get from the 1st July 2011 to the place where rehabilitation could begin. Secondly, it is said that they have failed to work honestly and openly with professionals. I fully accept, as I think do they, that there have been some examples of that but that needs to be qualified I think by two other observations. The first is that they have certainly not been amiss at making admissions contrary to their own interests from time to time during the course of these proceedings. How otherwise could they have, as it were, done what they have done to demonstrate a commitment to improvement? Secondly, I think they and the social worker were placed in a next to impossible position by a family placement and adoption officer being left with the responsibility for dealing with a case which was, in fact, all about a removal and rehabilitation. Adoption and placement officers have a very distinctive role to perform, which is based on the assumption that a decision has already been made that adoption is in the best interests of the child and their role is to procure that end. The social worker was being asked to do something that was completely counterintuitive and I am not surprised that she and the parents found relationships in those circumstances difficult. Nothing turns on this, in my judgment, but it was canvassed in the evidence so I think I ought to express the view that I attach no significance whatever to anything that was or was not said in the last interview between the social worker and the parents. If the purpose of an interview is to establish evidence it has to be properly noted at the time. I thought we had all learnt that by 1984 at the latest and, of course, if that is not the purpose and there are other purposes well of course nobody has to sit there poring over notebooks, but it was being used as though that were the purpose of the interview and it was wholly inadequate to achieve that end.

I recognise that there would be some risk of the parents being less than fully candid with a professional. However, it seems to me that the whole history of the case viewed in the round encourages one to the view that they would be in relation to things that really mattered and that such a risk, if all other things were equal, would be a risk worth accepting

 

That left the Court in a very difficult position

Everybody agrees that there are only two possible outcomes in this case. Either an adoption order is made with resultant devastation to the parents and their families or a rehabilitation order is made with subsequent devastation to innocent prospective adopters who took this child under a placement order without a hint, so far as they were concerned, that the thing could ever blow up on them.
Therefore, those seem to be the choices that confront the court and I must evaluate those with care, bearing in mind both the lifelong perspective required by Section 1(2), and also that this is not a choice in any real sense. This is a case in which an adoption order will only be made if only an adoption order will meet the welfare needs of this child and that the welfare needs of this child requires an adoption order be made. I evaluate it bearing in mind what Thorpe LJ said about the last hurdle being the highest, but I also bear in mind that at the end of the day, the legal burden to establish adoption lies not on the parents but on the prospective adopters.
I think, because it was clear how difficult a dilemma this was for the Judge, it would be fair to set out his conclusions in full rather than to condense them. I will simply say that if THESE parents were unable to succeed in opposing an adoption, before THIS Judge, I am not sure when (or indeed if) I will ever see a successfully opposed adoption. [I think it is something of a shame that Lady Hale’s “nothing else will do” formulation does not come into this exercise, because framed in that way, it is possible that a different conclusion might have been reached - it is almost impossible to say]

Therefore, let me start with my consideration of the merits and demerits of the rehabilitative process. I am satisfied that the parents have been committed to the concept of self-improvement. I can see the basis on which they say that they have achieved all that has been asked of them, but of course I have to remind myself that it is where you start that determines how far you have to go and doing all that you reasonably can may not in fact be to do enough. I need to remember, in the context of rehabilitation, where SR is at now, where the parents are at now and the full implications of what is involved in working out rehabilitation. Thus, if it were successful the child would grow up with the natural parents in settings in which the vast majority of children grow up and I recognise that it was always going to be the case that whichever choice the court made in this case, SR was going to grow up separate and apart from B, M and H. On the other hand, if the rehabilitation were unsuccessful, everybody agrees that would be a disaster for SR. Of course, no one can actually predict what would happen if the rehabilitation were unsuccessful but all the realistic possible outcomes merit the description ‘disaster’, so far as SR is concerned. Hence, the three questions that emerged. Would SR survive rehabilitation? Would the parents survive rehabilitation? Can the parents provide the necessary ongoing care for the next 15 and 16 years? Let us come to those questions in the context of considering rehabilitation. Would SR survive rehabilitation? Well, the short answer is nobody can give a confident answer to that because there can be no contact and because nobody would have any choice but simply to see what happened when you tried it. Secondly, it will of course be a second breaking of secure attachments and an attempt to make a third set of attachments. It would involve the burning of all boats, because the prospective adopters would not be available to her, in the light of a breakdown in rehabilitation and she would have to start all over again. It would mean a move to two people, i.e. the parents, who I think are emotionally more fragile that the prospective adopters and it would involve assessing that risk in the context of consequence. A modest risk that involves a serious consequence, should it come about, will invite much greater caution than the wider risk for which the consequences are predictable and manageable. This very firmly comes in the first of those categories. I confess to having very real fears for SR, should this process happen because, although the risk of failure is by no means certain, it is clearly real and the consequences are so serious.

The second question, would the parents survive the rehabilitative process? I have more confidence in that. Even if they underestimate the possible difficulties involved, they do appreciate that seriously troubled waters would lie ahead and they are willing to relocate and they are committed to the process, so that were SR to survive the process, then it seems to me it would be fair to conclude that the parents probably would. However, that then leaves the third question: would the parents provide ongoing care throughout this child’s childhood? The parents are confident that they could and I fully accept that that expression of confidence is genuine, in that it reflects what they feel and believe. I have to confess, however, that I do not fully share that confidence, partly because of their emotional fragility and partly because of their unknown capacity to react to what may be wholly unpredictable and quite irrational demands and responses of an upset child. This is a radically different state of affairs from dealing with a new baby, as we are dealing with a child that is attempting to make, and putting at risk, the third set of attachments in the first five years of her life. My confidence is inevitably dented by the gravity of the consequences of it all going wrong.

Now, what are the merits and demerits of adoption? Well, the demerits are clear enough. She will be deprived of being brought up, as the vast majority of children are brought up, by their own parents. That can lead, I fully recognise, to issues both in adolescent and adulthood because a child who will know what the background is will know that they are not being brought up in the way in which children are usually brought up. On the other hand, one has to recognise that a placement of a child of this age who has good attachments to the prospective adopters will, in the overwhelming number of cases, lead to at least a satisfactory outcome of family life. Now, of course, you can have both at the same time. You can have a satisfactory outcome with all the issues that adoption can raise in adolescence and adulthood and the fact that they have been brought up differently. The two are by no means exclusive and one has to consider them all together.

Having as it were, looked at the respective merits of the approaches, let me stand back and review all this through the prism of Section 1 of the Adoption and Children Act 2002. I remind myself that subsection (2) requires that the paramount consideration of the court must be the child’s welfare, throughout her life. I am anxious when I reread subsection (3) which says, ‘The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the children’s welfare.’ Well, it was once pointed out in the past that SR had been involved in litigation for the whole of her life after the first fortnight and that remains as true today as it was then. Mercifully, for one reason or another, she will not be conscious of the litigation that goes on at some distance from her own awareness, though she will be deeply conscious, if not able to articulate, the fact that she has had two moves, three homes during the course of her life, if you include the first fortnight as one of them, which I do.

So far as Section 1(4) is concerned it seems to me that the key aspects of it in this case are the child’s particular needs, in terms of security and stability, having regard to her life experiences to date and the child’s age, which has the effect of making it impossible for her to understand the adult world in which her future is caught up or to explain to that adult world the effect that that is having on her. I used the expression earlier that we are likely to see unpredictable and apparently irrational demands being made by a child who has no other capacity to communicate when distressed or confused by what is going on around her. There are two other aspects. First, one must consider the harm that she is at risk of suffering; that is entirely, in my judgment in this case, associated with the risk from a breakdown in rehabilitation and the emotional harm that will be occasioned by that. It would not however be right to part with the matter without, secondly, considering the requirements of subsection 1(4)(f) which provides as follows:

‘The relationship which the child has with relatives and with any other person in relation to whom the court considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child’s relatives or any such person to provide the child with a secure environment, in which the child can develop or otherwise meet the child’s needs and the wishes and feelings of any of the child’s relatives or any such person regarding the child.’
Now, that is drawn in very wide terms simply because adoption can arise out of a whole concatenation of circumstances which bear little or no relationship to one another, as between one case and another. However, it seems to me in the context of this case that the court, as part of the welfare and the judgment is to take account of the fact that we have parents who are willing to provide the child with a secure environment in which the child can develop or otherwise meet the child’s needs and what is in question is not their willingness but their ability to do so and that seems to me a matter on which the court should reflect. Secondly, the wishes and feelings of any of the child’s relatives regarding the child. I have only cursory evidence as to the input of the extended family but it is enough to suggest to me that the parents when they speak, speak with the support of their families and that therefore the wishes and feelings of the extended families and the parents are properly to be taken into account. The parents have demonstrated a commitment to the child which entitles them to have their wishes and feelings considered. Therefore, in my review of all this through the prism of Section 1, I have reminded myself of the need for a lifelong perspective. I have reminded myself I am dealing with a child with particular needs, in terms of stability and security. I have reminded myself that I am dealing with a child too young to understand the adult affairs that surround her and in which she is inevitably caught up. I remind myself that a breakdown in rehabilitation would, on anyone’s account, give rise to a risk of suffering harm and I have taken close account, I hope, of the ability and willingness of parents to provide for her and their wishes and feelings about that happening.

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption. My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it. That said, those are the orders that I propose to make.

All a matter of interpretation

The President’s decision in Re J and S (children) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/4.html

 

This was an application by parents for leave to oppose the making of adoption orders. The care order and placement order had been made in May 2013 by Theis J   http://www.bailii.org/ew/cases/EWHC/Fam/2013/2308.html

 

The President refused the application, the parents change of circumstances being put in these three ways

 

 

  1. That they had lodged an application with the European Court of Human Rights
  2. That the placement with a homosexual couple was contrary to the parents Slovak Roma heritage and their Catholic religious beliefs
  3. That there had been changes to the home conditions

 

 There is reference within the judgment to a Slovak organisation which provides assistance to Slovak citizens who become involved in English care proceedings – it might well be worth following this up if you are a Slovak citizen or are providing advice to someone who is.

31 In the present case Ms Sparrow relies upon three matters as constituting a change in circumstances.

32 The first is the pending applications before the European Court of Human Rights. As I have already noted, the parents’ applications for Article 39 measures have been rejected on three occasions. The present position is that the substantive applications remain pending before the European Court of Human Rights and, as letters from the Court state, will be considered “as soon as possible” though due to the Court’s heavy workload “it is not possible to indicate when this will be.” I say nothing as to what the position might be in a case where the Court has made interim measures under Rule 39. This is not that case. I fail to see how the mere fact that there is an application pending before the European Court of Human Rights can possibly amount to a “change in circumstances” for the purpose of section 47(5). I agree with what Moor J said in The Prospective Adopters v IA and Another [2014] EWHC 331 (Fam), para 39:

“The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.”

33 The second alleged change in circumstances arises out of the fact that J and S have been placed with prospective adopters who are a same sex couple. The parents put the point very simply and very eloquently in their witness statement:

“Our family is a Slovak Roma family and we are practising Catholics and a homosexual couple as potential adopters is very different from what Mrs Justice Theis had in mind in her judgment as this will not promote the children’s Roma heritage or their Catholic faith … Whilst we have no doubt that the prospective adopters have been properly assessed by the Local Authority, they are a homosexual couple and as such their lifestyle goes against our Roma culture and lifestyle

The children will not be able to be brought up in the Catholic faith because of the conflicts between Catholicism and homosexuality. They would not be able to maintain their Catholic faith if they are adopted by this couple and even if it was promised that they would attend church the children would at some stage be taught or learn of the attitude of the church to same sex couples. This would undoubtedly be upsetting to them and cause them to be in conflict between their religion and home life.

Slovakia still does not recognise same sex couples and so their Slovak roots and values will not be maintained. In 2013 the Catholic Bishops in Slovakia condemned same sex marriage.”

They go on to say:

“If, as expected, our children will try to find us and their siblings and roots, then they will discover the huge differences between our culture and the couple with whom they have been brought up. This is likely to cause them great upset and to suffer a conflict within themselves such as to set them against their adoptive parents. This would therefore cause the children great psychological harm as homosexuality is not recognised in the world wide Roma community. Having Roma children live with homosexuals or being adopted by them would be found to be humiliating … Ethnic, cultural and religious identity is an important part of identity and this aspect of a child’s needs in an adoptive placement should be considered very carefully. We do not accept that this has been properly considered by Kent County Council.”

They add:

“By proceeding with the adoption process and supporting adoption by a homosexual couple the Local Authority are continuing to act in such a way that will change our children who are of Slovak Roma heritage into white middle class English children which is contrary to the human rights of us and of the children. This is social engineering and is a conscious and deliberate effort by Kent County Council to transform our children from Slovak Roma children to English middle class children.”

34 Put very shortly, what Ms Sparrow says is that J and S have been put in a placement of a kind that was not contemplated by Theis J and which is wholly unsuitable having regard to the children’s Slovak Roma origins and Catholic roots.

35 I do not see how this can be described as a change in circumstances. There is nothing in all the material I have seen to suggest that the children’s placement with the prospective adopters was inappropriate or wrong, let alone irrational or unlawful, having regard to the principles that the local authority had to apply. Everything I have seen indicates that the process was conscientiously and properly undertaken having regard, as the paramount consideration, and as section 1(2) of the 2002 Act requires, to the children’s welfare throughout their lives. Nor, despite Ms Sparrow’s characterisation, has it been demonstrated that the placement was of a kind not contemplated by Theis J. On the contrary, Theis J expressly held, as we have seen, that the children’s welfare needs “outweigh” the impact that adoption would have on their Roma identity.

36 Of course, any judge should have a decent respect to the opinions of those who come here from a foreign land, particularly if they have come from another country within the European Union. As I said in Re K; A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 26, “the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family.” But the fact is, the law is, that, at the end of the day, I have to judge matters according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative. They have made their life in this country and cannot impose their own views either on the local authority or on the court. Thus far I agree with the local authority. I have to say, however, that it was, in my view, unfortunate that the local authority should have referred at one stage in the proceedings to the parents’ views on homosexuality in such a way as to suggest that they are bigoted. The label is unnecessary and hurtful.

37 The third alleged change in circumstances (not canvassed either in the parents’ statement or in Ms Sparrow’s written submissions) relates to what are said to be improvements in the parents’ domestic and family circumstances. I am prepared to assume for the sake of argument that there have indeed been improvements of the kind Ms Sparrow refers to, but it does not, in my judgment, take the parents anywhere. The short fact is that nothing Ms Sparrow has said begins to suggest any change which bears in any way on Theis J’s findings in relation to the parents’ non-acceptance of other peoples concerns and their inability to change.

38 In my judgment, none of the matters relied upon by Ms Sparrow, whether taken separately or together, amount to a change in circumstances sufficient to take the parents beyond the first stage. They fall at the first hurdle. That being so, there is no need for me to go on to consider the second stage of the inquiry. I make clear, however, that even if the parents had been able to overcome the first hurdle, they would, in my judgment, have fallen at the second. Their ultimate prospects of success if leave to oppose was given are threadbare. They are entirely lacking in solidity. In truth, I have to say, they are little more than fanciful.

 

 

 

The part of the application which has wider implications than just for this unfortunate family relates to the initial hearing of this application on 7th May, which had to be adjourned because the interpreters that had been booked did not attend.

 

8. The hearing on 7 May 2014

9. The hearing before me on 7 May 2014 was unable to proceed. Despite the order made by Judge Murdoch, and although HMCTS had, as was subsequently conceded by it, gone through the appropriate procedures with Capita Translation and Interpreting Limited (Capita) to book two interpreters, no interpreter was present at court. I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me – this, after all, was their final opportunity to prevent the adoption of their children – if the parents were unable to understand what was being said. Anyone tempted to suggest that an adjournment was not necessary might care to consider what our reaction would be if an English parent before a foreign court in similar circumstances was not provided with an interpreter.

10. I accordingly adjourned the hearing until 15 May 2014. I directed that HMCTS was to provide two interpreters for that hearing. I directed that Capita’s Relationship Director, Sonia Facchini, file a written statement (with statement of truth) explaining the circumstances in which and the reasons why no interpreters had been provided by Capita for the hearing on 7 May 2014. I gave Capita permission to apply to vary or discharge this order. It chose not to. I reserved the costs of the hearing on 7 May 2014 to the hearing on 15 May 2014 “for consideration of, inter alia, whether Capita should pay such costs.”

 

 

Capita did produce that statement, which raises more concerns than it resolved.

 

It indicated three matters of concern

 

  1. Capita, although being paid to perform the Government contract of providing interpreters for Court eschews all liability if the interpreters they book don’t attend Court.
  2. Capita don’t tell the Court until 2pm the day before the hearing that no interpreter will be coming, giving no time for alternative arrangements to be made
  3. Capita say that on they have 29 Slovak interpreters, and on the day in question there were 39 separate court hearings that required them. Thus raising huge issues about provision of interpreters.

 

Anyone who does family law will have had experiences of interpreters being booked and not attending, or a wholly unsuitable interpreter attending, and trying to deal with the fallout from this. Capita’s explanation here provides some context for just how bad things have become

 

Capita

11  Ms Facchini’s statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.

12 Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.

 

 

I don’t think we will have heard the last of this issue.

adoption of an 18 year old

 

Re B (2014)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1284.html

 

The Court were faced with an application by a couple to adopt a boy who was, by the time of judgment 18. The application was issued when he was 17, so the Court had jurisdiction at the time of the application (it took nearly a year to resolve)

There were two reasons why it took so long to resolve.

 

1. The immigration status of B himself.  And in particular the Home Office’s “deafening silence” in relation to any attempts to engage them

 

2. The need for an age determination of B, since some of the documentation suggested that he might actually be 26, which would have taken him outside of the Court’s jurisdiction to make an adoption order.

 

  • a 30-page letter sent to the Home Office dated 12th May 2011. This letter set out a detailed account of the background circumstances and effectively asked for a reconsideration of the previous refusal in August 2010. It also asked for leave for B to remain here on compassionate grounds, as set out in some detail in that letter.

 

 

 

 

  • That letter was sent to the Home Office on 12th May 2011. Here we are nearly three years later, and despite chasing letters being sent to the Home Office by Mr. O on 17th November 2011, 29th November 2011, 16th January 2012, 20th February 2012, 11th June 2012, 5th November 2012 and 23rd August 2013, not one response or acknowledgement has been received from the Home Office regarding that application.

 

 

 

 

  • This morning I was shown a letter from Capita (who appear to be instructed on behalf of the Home Office) to O Solicitors dated 28th March 2014. It says as follows:

 

 

 

“Thank you for your request dated 23rd May 2011 asking for reconsideration of the decision to refuse your client’s application for leave to remain. I apologise for the delay in responding to your client’s letter. We are in the process of reviewing your client’s request for reconsideration and would be grateful if your client could complete the attached form to provide us with an update to your client’s current circumstances. This information will assist in assessing whether your client’s case is eligible for reconsideration.”

A Capita form is attached which is about five or six pages long. The letter continues:

 

“Please return the form in the prepaid envelope within 14 days from the date of this letter. If we do not receive the returned form within this timeframe, your client’s reconsideration request will be assessed on the information provided at the time of the request or in which it is held on Home Office records.”

It is then signed, “Yours faithfully, Capita Business Services”. The letter is not signed by any individual. It is a pro forma letter. That is the updated position regarding the immigration application.

 

 

[I am REALLY looking forward to working for Capita, once care proceedings are privatised]

 

  • Turning back to the procedural history, the matter was listed on 2nd October, again before District Judge Simmonds. He records in order that it appeared to the court that three matters were outstanding, one of which is the reply from the Home Office. Paragraph 1 of that order, “The court shall forthwith chase the Home Office for a response to whether they wish to intervene and for them to send this to the court forthwith”. In paragraph 2 it states “The court shall forward to the parties any response from the Home Office on receipt”. The matter was listed again for final hearing on 28th October 2013.

 

 

 

 

  • In the intervening period between 2nd October and the end of October, enquiries were made by the court to see whether there had been any response from the Home Office but none had been received. On 25th October, the court advised the parties the hearing on 28th October was vacated due to an issue with the Home Office.

 

 

 

 

  • On 25th October an order made by District Judge Simmonds states as follows:

 

 

 

“Upon the adoption office having contact with the Home Office, as no reply had been received from the court’s enquiries, and upon the Home Office confirming that B has no right to stay in the United Kingdom and has his own case worker and they are awaiting information from the case worker before replying. And upon the court adjourning the hearing for this information to be provided.”

 

 

  • The court directed the 28th October final hearing was vacated and the time for the Home Office to provide a response as to whether they wished to intervene within the proceedings was extended to 22nd November. The ordered provided that in the event the Home Office did not reply by 22nd November, the court shall proceed with the application on the basis that they do not wish to intervene. The matter was listed again before District Judge Simmonds on 29th November.

 

 

 

 

  • On 28th November the court telephoned B’s solicitor to advise that some documents had been received from the Home Office. This meant the final hearing that was then listed on 29th November 2013 may not be effective. At the hearing on 29th November a statement with exhibits from Mr. S of the Home Office was before the court and was shown to the parties. Mr S is a Higher Executive Officer with responsibility for the custody of Home Office records. The statement raised issues regarding the date of birth for B together with issues regarding different birth certificates and their authenticity. As a result of that material being put before District Judge Simmonds, he transferred the matter to the High Court and it was listed for hearing before me on 16th January.

 

 

 

 

  • Pending that hearing District Judge Simmonds made a number of directions. He directed B to file and serve a statement in reply to the statement from the Home Office by 10th January 2014. He also directed:

 

 

“This order shall be forwarded to the Home Office and they are invited to attend the hearing at para.1, namely 16th January 2014, to assist the court and to make any application to intervene in the proceedings on or before that date.”

 

 

  • Immediately following that hearing on 29th November B’s solicitor advised the Home Office of the hearing and forwarded them a copy of the order advising them of the date of the hearing on 16th January. On checking with the court, subsequently it was found that the court, too, had sent a copy of the order of 29th November to the Home Office. No response was received either by B’s solicitor or by the court from the Home Office.

 

 

 

 

  • The matter first came before me on 16th January. Having considered the papers, in particular B’s witness statement of 9th January, I made the following recitals:

 

 

“The Home Office, having failed to indicate whether it wished to intervene in these adoption proceedings by today’s date as ordered by District Judge Simmonds on 29th November, and upon the court indicating that it intends to make a declaration in relation to B’s age, and upon the court making a court request for information to the Home Office as specified in the form EX660 of today’s date, and upon the court inviting B’s current immigration solicitors to provide the solicitors for the guardian with copies of the documents and his immigration file by 23rd January…”

 

I made an order that included the following:

 

“1. The solicitor for the guardian do forthwith serve a copy of this order and a copy of B’s witness statement dated 9th January (along with its exhibits) on the Secretary of State for the Home Department via the Home Office liaison team at HMCTS.”

2. That the Home Office do notify the guardian’s solicitors by 14th February whether it intends to apply to intervene in these adoption proceedings, and if it does, to issue such an application by 4 p.m. on 17th February.

3. In the event that such an application is issued, there is to be a directions hearing listed before me on 25th February to consider any directions that need to be made as a result of such an application with a time estimate of 30 minutes.”

 

 

  • I made provision that if the application to intervene was not made, the hearing on 25 February could be vacated. I listed the matter for a substantive hearing on 6th March with a time estimate of one day to consider (and this was recorded on the face of the order) (1) whether to make a declaration in relation to B’s age, and (2) to decide whether to make an adoption order in relation to B. I made directions for the filing of further evidence, both by the applicants and by B, and I made provision, if the Guardian was so advised, to file any further report. I made directions for the filing of skeleton arguments.

 

 

 

 

  • That order was sent to the Home Office by B’s solicitor. The solicitor phoned the Home Office liaison team on 20th January to check what the correct address was. They were told that the information, the EX660 and the order should only be served by fax. They sent an unsealed copy of the order I had made on 16th January by fax to the Home Office on 20th January. On 26th January they sent the sealed copy of the order by fax to the Home Office. They also sent the EX660 to the Home Office so they were aware of what was required.

 

 

 

 

  • B’s solicitors corresponded with the court on two occasions to see whether the court had heard anything from the Home Office. They vacated the hearing on 6th March because details had not been obtained from the Home Office in response to the EX660 and re-listed the matter for today. They informed the Home Office of this revised timetable. They finally contacted the Home Office on 26th March. They faxed the Home Office a letter asking if they were going to respond to the EX660 or to any of the directions that had been made by the court. No response has been received from the Home Office.

 

 

 

 

  • It is quite clear the Home Office has been given every opportunity to participate and engage in these proceedings, not only through the efforts of the court but also by the solicitor for B.

 

 

 

 

  • In accordance with my directions made on 16th January, both B and the applicants have prepared further statements that have been filed and I have read them.

 

 

 

 

  • The only updated information is the letter referred to above from Capita on behalf of the Home Office asking for a form to be completed in relation to B’s application for reconsideration of the refusal of his application for leave to remain. As I have indicated, that is against a background (as far as I am able to understand because the Home Office has not responded to the EX660) that B arrived here in early 2008 on what appears to have been a six month visa which was not renewed. Mr. and Mrs A sought to regularise his position by their application in April 2010. That was acknowledged on 17th May 2010 when there was a request to the former immigration solicitors by the Home Office for a form and a method of entry questionnaire to be completed. This was completed and returned.

 

 

 

 

  • As I have indicated, that application was determined in August 2010. The only information I have in relation to that is the way the reasons for refusal are summarised in the letter from the immigration solicitors to the UKBA on 12th May 2011. At p.2 of that letter they set out the basis of their refusal, effectively rejecting that any Article 8 rights had been established in favour of B to enable him to stay here.

 

 

 

 

  • It is of note on the information I have about the process that took place in 2010, it appears at no stage was any issue raised in relation to B’s age. New solicitors were instructed in early 2011 and they made the application in May 2011. Despite the chasing letters listed above and nearly three years having passed since that application was made, no response was received until the letter from Capita on behalf of the Home Office on 28th March. It appears to be accepted by the Home Office, that the application in May 2011 was for a reconsideration of the refusal of B’s leave to be able to remain here.

 

 

Against that background, it is not surprising that the Court eventually decided that they were unlikely to get any joy out of the Home Office  (in A J Herbert’s lovely phrase the parties had been engaged in “frequent although one-sided correspondence”)  and turned their attention to a forensic exercise of whether blood could be extracted from a stone, as that was more likely to be productive…

 

 

  • I am quite satisfied this application is not a device, by any stretch of the imagination, to gain a right of abode. Mr. and Mrs. A have responsibly taken all necessary steps at each stage to seek to regularise the position regarding their care of B. They fully cooperated with the private fostering assessment that was prompted by their application regarding B’s immigration position. They then promptly and responsibly applied for a residence order, which was made by the court. As I have said, they have subsequently assisted in supporting applications to regularise B’s immigration position. They could not have done any more.

 

 

 

 

  • I am satisfied the applicants, the solicitor for B and the court could not have done more to seek to engage the Home Office in these proceedings; but they simply have not responded. I am quite clear this application cannot be delayed any further. I am, of course, acutely aware that if the court does go on to grant an adoption order, it confers nationality, but I can see no more the court could have done to seek to engage the Home Office in these proceedings.

 

 

 

 

  • It is of particular concern there appears to have been a complete failure to comply with what, in my experience, has always been an effective procedure for this court to obtain relevant immigration information, namely through the EX660 procedure. It is normally expected that that request will be responded to within 28 days. My recent experience in other cases is that the response is normally well within that time frame. In this case the EX660 request is now 63 days old. I sincerely hope this is an isolated occasion where there has been non-compliance with the request made by the court, but I will take steps to ensure that the circumstances of this case are drawn to the attention of the Home Office.

 

 

 

 

  • I am quite clear this application, in the particular circumstances of this case, should proceed and there should be no further delay.

 

 

The age issue

 

  • The next issue the court has to consider is B’s age. One of the matters that raised by the statement from Mr. S is B’s date of birth. It is raised in an unhelpful way because the statement has been provided and the issue raised, but the Home Office have been unwilling to participate in the case to assist the court further.

 

 

 

 

  • What is said or implied by the statement from Mr. S is that when B was brought to this jurisdiction in January 2008, it was on a passport that gave a different date of birth, namely 17th September 1987. This would make B 20 years of age when he arrived in 2008 and would make him 26 ½ years of age now.

 

 

 

 

  • With the application made by Mr. and Mrs. A, they submitted birth certificates setting out his date of birth as 17th September 1995. As far as I can see in all steps they have taken in relation to B, not only in relation to his immigration position but in all other aspects of his life, they have operated on the basis that this is his date of birth. That would have made B about 12 ½ years of age when he came to this jurisdiction in early 2008.

 

 

 

 

  • I consider it important the court should determine this issue with. It has to for two reasons.

 

 

 

 

  • Firstly, to determine whether the court has jurisdiction to be able to consider this application because, by virtue of s.49(4) ACA 2002 an application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.

 

 

 

 

  • The application was made on 1st June 2013. If B’s date of birth is 17th September 1987, he was clearly over 18 at that time. However, if his date of birth was 17th September 1995, he was under 18 at the time when the application was issued and so the court has jurisdiction. In addition, the court would only have power to make an adoption order pursuant to s.47(9) in relation to a person who has not attained the age of 19 years. Clearly, that would be the position if B’s date of birth was in 1995, but it would not if his date of birth was in 1987.

 

 

 

 

  • Secondly, I consider it an important and integral aspect of B’s welfare for the uncertainty that has been raised in relation to his age to be resolved.

 

 

 

It is established law that the Court can make a factual determination following their own assessment of the age of a young person (that chiefly flows from the case law about unaccompanied asylum seekers, where they are entitled to certain services if they are under 18 and thus from time to time the Local Authority is placed in a position of deciding whether someone who appears to be much older is really a child). The Court took a variety of factors into account

 

  • Having considered all the evidence from these different sources I am satisfied, on the balance of probabilities, that B’s date of birth was 17th September 1995 and, as a result, he was 17 years of age when this application was issued and this court consequently has jurisdiction.

 

 

 

 

  • On the information that I have seen it is inconceivable that B would have been able to live a life if he was eight years older than he is. This is particularly bearing in mind that he has been attending school and college, and been exposed to the various agencies, particularly the local authority, through the reports that have been prepared in relation to B’s care and placement with Mr. and Mrs. A, without somebody questioning or raising such a significant issue regarding his age.

 

 

 

 

  • Whilst I acknowledge the question of growth in height is not determinative, in the context of this case it is an important part of the evidential picture. Particularly when looking at the alternative age which during the relevant period he would have been between 22 and 25. It is highly unlikely, in my judgment, that there would have been a growth of 20cm in height between those ages, and it is much more likely that that growth in height would have taken place between the ages of 15 and 17.

 

 

 

 

  • I have no reason to doubt the account give by Mr and Mrs A regarding B’s age. They have boys of their own, some of whom are young adults. They have had his care for over five years and have seen nothing to suggest he is 7 years older than they have understood he is.

 

 

 

 

  • In reaching my conclusion, I have also taken into account that it is likely that the person who brought B over to this jurisdiction from Nigeria probably had an incentive for B to be an adult rather than a minor. This is due to the circumstances in which he was brought here and the circumstances that he has described during the period of time that he was living with uncle Femi between early 2008 and early 2009.

 

 

 

 

  • For those reasons I will make a declaration in relation to B’s age, being satisfied as I am on the balance of probabilities that he was born on 17 September 1995.

 

 

 

The Court then went on to consider the adoption application itself, having satisfied itself that the Court had jurisdiction to make the order.  Those reasons are not terribly interesting or important in themselves, but it is the second example of the High Court treating certain types of adoption as being different in character to the non-consensual or forced adoption that are tied up with the “nothing else will do” and Re B-S principles  (the first being the step-parent adoption case). That may be of interest in the as yet unanswered question about whether Re B-S applies to adoptions where the mother has relinquished the child.

 

The Court did, of course, make the order

 

Having carefully considered the matters in the welfare checklist I am satisfied B’s lifelong welfare need, which are the court’s paramount consideration, can only be met by the security and stability that an adoption order will bring. Only an adoption order will secure lifelong his relationship with Mr. and Mrs. A.

Who’s surrey now ?

Apologies Surrey, you just happen to be one of the few Councils in the country that have a name that lends itself to song titles.

Surrey County Council v S 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

 

I’ll zip in and out of this one, because it is an appeal that raises only minor points (though they might BECOME more significant). This from Ryder LJ

  • As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority’s ‘agency decision maker’ has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (A Child) [2013] EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By section 22(1) (c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.

 

  • There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

 

  • In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

 

  • Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child’s future. In this case, the local authority should have abided by the directions that the court gave which would have facilitated concurrent hearings. If as the local authority submit the mother was not co-operating in permitting medicals to be undertaken that are necessary for the agency decision maker’s decision, they should have obtained a court order requiring the same. If the placement order evidence had been available to the judge, the local authority’s case about adoption and the comparative exercise expected of the judge would have been much clearer. Although not relied upon by Judge Cushing, the absence of the agency decision maker’s decision in this case and the evidence that would have supported the same is an additional reason why it would have been disproportionate to approve a care plan with a view to adoption.

 

  • I am very aware that in making the additional observations that I have about placement order evidence, the statutory framework and regulations concerning adoptive placements are likely to change this summer. When section 22C(9A) of the 1989 Act comes into force there will be associated with it an amended regulatory regime which will require a different decision to be made by the director of children’s services of the local authority to permit the placement of a child with a local authority foster parent who is also a prospective adopter. Nothing I have said in this judgment touches upon how that decision is to be made or how and when evidence of that decision is to be presented to a court.

 

This raises two points

 

1. That the Court of Appeal have remembered the concept of inchoate care plans, finally ! And that the solution that was being mooted in various cases that in order to “hit 26 weeks” the Court hould make a Care Order and come back at a later point for a standalone SGO application (if the relative who came forward or the work to be done with parents panned out) or a standalone Placement Order application (if it doesn’t) is not procedurally fair (as I have been saying for over a year now)

2. That the CoA seem to want Local Authorities to lodge the Child Permanence Report alongside their other papers in the placement order application. Well, have fun reading them, Judges.  If there’s a duller document outside leases, I’ve yet to read one  (and bear in mind that I once worked in contract law and did liability shield clauses).  It also isn’t going to do much for the much vaunted aim of slimming down the bundles.

 

Why might the first BECOME more important? Well, now that the Court of Appeal have frowned on finding of fact hearings for both physical injuries (fracture disputed by parents) and sexual allegations (sexual assault on 14 year old, disputed by parents), it looks like for those of us who are not Jo Delahunty QC, we are going to instead resolve all of the factual disputes at final hearing. Which means, care plans that are framed as several possible alternatives, which means applications to adjourn to give time to reflect on the judgment, time for risk assessments, time for treatment, time for separation to be effected and tested. So when that happens, and Judges start suggesting that all of that work should be done under a Care Order (finish the proceedings, come back if it all goes wrong), those passages might turn out to be extremely helpful. You’re welcome.

Role of the appellate Court

This case was decided in December but only just reported. It relates (of course) to an appeal arising from a failure of the Court at first instance to properly balance the issues and pros and cons in a Placement Order case.

 

Re B (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html

 

This one is interesting because it involves an appeal initially from what was the Family Proceedings Court (and is now Tier One of the Family Court, or Tier Three of the Family Court, nobody seems absolutely sure whether a higher number is good, or bad, we just know that District Judges are in the middle and are Tier Two).   It was one of my Burning Questions post Re B-S months ago, as to whether the expectations of Re B-S bore down on the Justices as they did on the Circuit Judge  (which seems to be common sense, but there’s existing authority that you can’t expect the same degree of analysis and rigour from three lay Justices as from one Judge).

The first time this issue came up in appeal, it wasn’t decided because the Court of Appeal wisely and sagely decided that the Justices reasons were marvellous rather than flawed  (one of those moments when you know you’ve lost your appeal in the first ten seconds), and the case wasn’t a reported one.

However, second time lucky

 

It is common ground that the FPC’s Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority’s care plan and the court’s orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates’ Reasons betrayed, the FPC adopted a ‘linear approach’ to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B’s long term future care.

 

  • It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:

 

 

i) they adopted a linear approach to their decision making;

ii) they failed to carry out a welfare analysis of the realistic options for B’s long term care; and

iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.

 

  • In this case and having regard to the first court’s Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates’ failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger’s formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.

 

That’s pretty damn clear authority for the fact that Justices Facts and Reasons in an adoption case had better damn well cover all the requirements of Re B and Re B-S, otherwise they have done it wrong.  [It has taken SIX MONTHS for any of my Burning Questions http://suesspiciousminds.com/2013/11/01/burning-questions/ to be answered, and now I've had two in a week]

 

Anyway, the Court of Appeal was far less interested in satisfying my innate curiousity and more interested in the actual appeal in question, which was – having found that the Justices had got their decision wrong on a number of levels, should the Circuit Judge who heard the appeal have sent the case for re-hearing, or just made the decision herself and done it right? What happened in this case was that the Judge did deliver a judgment, containing all of the necessary ingredients, had done the job properly and made orders, that the father, though Mr Weston QC appealed.

 

Mr Weston, for the father was arguing broadly that having not heard the evidence, the County Court ought to have stopped at the point where they resolved to grant the appeal and that the Justices reasons were so flawed as to make their decision wrong, and not go on to “fill in the gaps”  themselves.  And further that even if the Judge was right to attempt it as a general principle, to do so in this case ignored the gaps in the evidence that would make such a process unfair.

 

  • In this case, Judge Clarke held that the magistrates reasoning was insufficient and thereby wrong and the question arises whether a judge was permitted to ‘fill the gaps’, provide her own reasoning or substitute her reasons for those of the first court.

 

 

 

  • Mr Weston for the appellant makes a strong and clear case about what he submits was the irregularity of what happened. He submits that the judge rightly decided that the FPC had to consider the substance not just the letter of the statutory provisions. They had to undertake an analysis rather than pay lip service to the words. He submits that the FPC could not do that because the evidential materials were missing. Not only were they missing in the FPC, but at the hearing where the judge conducted her own analysis and evaluation, the evidence was still missing. Any new evidence relating to new issues of fact and changes of circumstance (and there was at least one new and potentially significant allegation that may have been relevant) or the implications of the same for the welfare analysis and proportionality evaluation, was also missing. Furthermore, the benefit of listening to and appraising the witnesses including the parents was lost in a procedure which was not a true re-hearing. Mr Weston accordingly submits that the procedure adopted was wrong and that its consequence was a welfare analysis and a proportionality evaluation that were inevitably flawed.

 

 

 

  • Mr Weston also submits that a judge conducting a review has a decision to make as respects any evidence that needs to be heard or re-heard when a determination is wrong as a matter of substantive or procedural law. He or she may conduct a limited re-hearing on a discrete point if the material exists to enable that to be done. That may involve considering an application to adduce additional evidence but in any event will involve a careful appraisal of whether the evidence exists to decide the issue in question and how that exercise is to be conducted to ensure procedural regularity.

 

 

 

  • Mr Weston’s final point is that the evidence in these proceedings was so defective on the point that it was not available to the judge to fill the gaps that existed. Accordingly, even if she had allowed the appeal and moved to re-hear the case, she could not have done so immediately without the benefit of case management to ensure that the court had the evidence that it needed to conduct its own analysis and evaluation.

 

 

 

  • Mr MacDonald like Mr Weston carefully identified the difference between a review and a re-hearing but was astute to identify cases in which a review and a re-hearing may be a continuum. He submitted, correctly, that the duty of the judge conducting a first appeal is to decide whether the proportionality evaluation of the first court was wrong. A proportionality evaluation is not a discretionary decision: it is either right or wrong and whether a decision based upon it should be set aside on appeal depends upon an analysis of the kind formulated by Lord Neuberger in Re B at [93] and [94]. Mr MacDonald submitted that the judge on appeal having identified the deficiencies in the first court’s decision making was obliged to consider whether the proportionality evaluation was thereby or in any event wrong. In an attractive submission he demonstrated that in every case where the first court has made an error in the welfare analysis (even where that analysis is based on a sufficient evidential base) the proportionality evaluation will be affected such that it may have to be re-made. He rhetorically asks the question whether in every such case the appeal court is required to remit the proceedings for a re-hearing when everything else in the case is intact and procedurally regular.

 

 

 

  • The continuum described by Mr MacDonald is very real in two senses: a) the welfare analysis and proportionality evaluation are intimately connected because an error in the analysis will inevitably have an effect on the evaluation with the consequence that an appeal court has to consider them together and b) the appellate court’s review of welfare and proportionality will involve having to consider whether there would be any difference in the ultimate conclusion, that is the order made, if the welfare analysis and proportionality evaluation were to be re-made. Aside from other considerations, that is because an appeal lies against an order and not the reasons for it (see Lake v Lake [1955] P 336). That at least involves, where practicable, a hypothetical exercise in seeing what the evaluation would be if it were to be re-made on a correct welfare basis.

 

 

 

  • Mr MacDonald acknowledged that the decision by an appeal court whether to re-make a welfare analysis and proportionality evaluation or remit for a re-hearing is itself a discretionary exercise. He identified the question which the appeal court needed to ask in relation to that discretionary exercise as being: “is the error rectifiable by the appeal court or is it too big?” That tends to suggest that there is an identity of approach by the appellant and the respondent to the question this court is asked to answer.

 

 

This is a big issue – if during the process of an appeal, the appellate Court is satisfied that the original decision was made wrongly, what are they supposed to do about it? Granting the appeal is easy, but that’s only half the story. Do you send it back for re-hearing, or give your own subsituted judgment addressing all of the issues? Which is the right thing to do? If either are possible in certain circumstances, what are those circumstances?

Conclusion in principle:

 

  • I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.

 

 

 

[Suesspicious Minds interruption - this is saying that the appellate Court have the power to do either - to remit for rehearing OR make their own decision, but they have to be sure that the course that they take is FAIR]

 

  •  If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.

 

 

 

  • If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

 

 

 

  • The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

 

 

 

 

Thus, if the error that led to the appeal is sufficiently narrow or discrete that the appellate Court can fairly make their own decision, then they can do so, but if it is wife and arises from missing evidence or the failure to answer a key question, or the credibility of witnesses is at issue, then a re-hearing would be the right outcome.

 

Application of the conclusion in this case:

 

  • Mr MacDonald’s primary submission is that at least initially Judge Clarke correctly identified what was required of her in this passage of her judgment at [50] that I have cited at [10] above. Later in judgment and perhaps as a consequence of a discussion on the transcript to which this court has been taken, Judge Clarke appeared to conflate the issues she had so carefully identified by regarding McFarlane LJ’s analysis in Re G at [69] as being a mandatory requirement to re-make a proportionality evaluation where errors are identified which vitiate a first court’s analysis. I do not read that part of McFarlane LJ’s judgment in that way. He was identifying the logical consequence that errors in the decision making process would necessarily have an effect on the proportionality evaluation rather than that in every case the appeal court should substitute its own proportionality evaluation for that of the first court. The latter formulation would be contrary to the dicta of the majority of the Supreme Court in Re B. Had Judge Clarke not been deflected from her task, she would have reached the point where the discretionary decision identified should have been made. Mr MacDonald submits that had she done so, she had all the material she needed to re-make the decision. He submits that the error of the FPC was not critical to the determination because the evidence existed in support of a welfare analysis and a proportionality evaluation that were and are coincident with the orders made by the FPC. To that extent, he says, the judge was able to fill-in the gaps and avoid a full re-hearing that would have involved inevitable delay. He has taken this court through the judge’s decision making process in an attempt to support the exercise she undertook.

 

 

 

  • The final evidence of the social worker does not include any welfare analysis or balance. It also fails to deal with why the adoption of B was necessary or required. The local authority’s permanence report which was exhibited to their Annex B report in support of the application for a placement order ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated. I need say no more than that both reports are poor and demonstrate a defective exercise in identifying the benefits and detriments for the child of the realistic long term options for the care of B. That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made. The revised care plans and statements of evidence filed after the local authority changed its mind contained statements relating to their concerns about whether the parents had the capability to work openly and honestly with them. Beyond that they are devoid of any welfare analysis of the alleged change of circumstances or of the options for the long term care of B. There is no evidence relating to the proportionality of the plan proposed.

 

 

 

  • Although the children’s guardian’s analysis makes reference to both exercises and supports the local authority’s plan for adoption, it likewise does not descend to an analysis of the welfare of B throughout his life except for just one opinion in one of 36 paragraphs where she says: “My own view until very recently was that this is a finely balanced case; although I had significant concerns about the parents’ ability to work in partnership with professionals. I balanced against that the potential loss to [B] of the opportunity to live in the care of his birth family if such an outcome could be achieved. I was particularly mindful of his right to family life and the loss to him of a relationship with his siblings.” So far as it goes, that is a relevant opinion, but in my judgment not a sufficient analysis for the purposes of the ACA 2002 or the authorities. There is no evidence directed specifically to why it is necessary to dispense with the consent of the parents to adoption.

 

 

 

  • With the benefit of access to the original evidence that this court has had, it is clear that that evidence could not in itself have supported the conclusions reached by the FPC had it been adopted as the reasoning for the same. In particular, there is no comparison of the benefits and detriments of the realistic welfare options for B upon which the FPC could have relied. In the absence of a sufficient welfare analysis by the FPC, there was simply no analysis at all. Accordingly, there was nothing of substance to be evaluated to decide whether or not it was proportionate. Judge Clarke did not hear any additional evidence with the consequence that the evidential basis for the orders remained as defective in the County Court as it had been in the FPC. No amount of elegant language could disguise that fact. It is of course open to a specialist judge to construct an analysis required by statute from the evidence of fact, expert opinion and evaluative judgment that she has heard and that is a distinct exercise from a professional assessment that is required because it is outwith the skill and expertise of the court: Re N-B (Children) (residence: expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259. In this case there was no evidential basis for that exercise.

 

 

 

  • Where the appeal court cannot comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision has been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. There is a continuum between the functions of the appeal court to review the proceedings of the first court and to conduct discrete decision making functions that fill identified gaps in analysis or evaluation that represents an appropriate exercise provided it not be used so as to create a situation of procedural irregularity. It is not helpful for this court to be prescriptive. Each appeal will have its own matrix of fact and value judgments. In this appeal, the evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

 

 

 

  • At the conclusion of the appeal we allowed the appeal with reasons to follow. We set aside the care and placement orders and remitted the proceedings for a re-hearing of the welfare decision relating to B by a different judge in the County Court who had already been allocated to consider the local authority’s applications relating to the parents’ new baby.

 

 

That all seems perfectly proper to me, and it is nice to have it clarified. My suspicion is that we will see more re-hearings than substitutions of judgment. That does raise its own question, as to what happens with very time-sensitive decisions (like an ICO removal) where hearing-appeal-rehearing seems to build in quite  a delay – and if the first court granted the removal, is the child to be returned after the successful appeal pending the rehearing? It will probably be case specific.

 

Special Guardianship versus adoption

 

 

 
Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption.  As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

http://suesspiciousminds.com/2014/02/14/re-b-s-can-itself-be-the-significant-change-of-circumstances/

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate

 

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

 

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.

Successful appeal against placement order

 

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

 

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

 

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

 

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

 

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

 

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

 

And the final conclusions that the Court of Appeal reached were not markedly different to that.

 

On risk

 

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

 

On a failure to properly explore the other options

 

 

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

 

 

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

 

 

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

 

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out”   (bear in mind that the LA are opposing these appeals, not bringing them)

 

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

 

 

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

 

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA.  )

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