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“As a drunkard uses a lamppost…”

Posted on May 14, 2013 by suesspiciousminds

 

 A discussion of the new CAFCASS figures on care proceedings issued by Local Authority area. Warning, contains maths, guesswork and ranting.

http://www.cafcass.gov.uk/media/147399/care_demand_per_child_population_by_la_under_embargo_until_9th_may_2013.pdf

 

“He uses statistics as a drunkard uses a lamppost – not for illumination, but for support”   – Winston Churchill

 

 They are interesting though, as the very least, they show up the real differences from area to area of the country. Some of that isn’t terribly surprising, one would not be shocked, for example that inner cities have higher rates of care proceedings than say Saffron Walden.  But there does seem to be quite a lot of variance even taking into account that different authorities have different social problems

 One might be surprised, for example, to see that Hackney have a lower number of care proceedings per 10,000 children than those notorious hot-beds of poverty, erm Kensington and Westminster.  Or indeed that Hackney’s figures on care proceedings per 10,000 children are now twice as high as they were in the 2008 post Baby P spike. Am scratching my head about that one.

 What is also, of course interesting, is looking at an authority and comparing it to its neighbours.  And also, as a long standing local authority locum lawyer, I can also use the chart as a handy guide to where I haven’t worked yet, and which authorities I’d probably be bored stiff in   (I won’t be taking a job in the Isles of Scilly any time soon, based on this chart)

 It isn’t terribly surprising that overall, one can see a big spike post Baby P  (that’s due in part to the increased referrals, in part to the greater willingness of local authorities to take action, in part due to a reluctance to manage risks at home that might previously have been managed, and in part due to the numbers having been artificially depressed by the double whammy of the PLO and the jacking up of court fees)

 Although 13 of the 94 authorities didn’t get this spike, they actually issued on a SMALLER proportion in the year post Baby P – including Hackney.

 You can also see that whilst a number of authorities have seen that spike settle down and decrease (though not back to pre Baby P levels) the overall trend is still increasing, from an average of 6 proceedings  per 10,000 children pre Baby P, to 8 the year after, to 9.7 in 2012/13.   And quite a few authorities are issuing MORE proceedings per 10,000 children than they were in the year post Baby P.

 [One should also bear in mind that most proceedings involve more than one child, so the actual number of CHILDREN subject to care proceedings per 10,000 children is higher than 9.7, how much higher is hard to say. I’d guess that the AVERAGE number of children per care proceedings is about 1.5 – you get a lot of babies, but also a lot of large sibling groups]

 

As the other CAFCASS stats show

 http://www.cafcass.gov.uk/news/2013/april_2013_care_application_statistics.aspx

 April 2013’s figures were 20% higher than April 2012’s  (which were themselves already a high base)

 And February 2013 hit 999 applications, the highest for any month ever.  (and bear in mind that February is a short month, and it is not historically one of the spike months – which are normally coinciding with imminent long school holidays, so June/July and Christmas period)

 On my guess, those 999 applications represent 1,500 children.

 And between March 2012 and April 2013, CAFCASS received 11,064 applications   (or on my guess, 16,000-17,000 children were made the subject of care proceedings in that year)

 This all makes me a little nervous  – because when you look at the national figures for adoption recruitment, the English authorities approved 2655 adopters in the whole of last year.

 http://media.education.gov.uk/assets/files/xls/u/20130326%20underlying%20data%20for%20maps.xls#’Map C’!A1

 

Now of course, not all of the children who came into proceedings need to be adopted – one hopes that MOST of them stay with mum and dad, some more are placed with family members, some of them will be too old to be adopted even if they can’t be placed with family members. So the 16,000 children is a MUCH MUCH higher figure than the children who need adoptive placements as a result of coming into care proceedings – I don’t have any hard data to extrapolate that. *

 *[Other than the same Government adoption stats that showed 2655 adopters approved in 2012, showed 5750 children waiting for adoptive placements, which I’ve written about previously. But that doesn’t tell me how many of those children had been identified as needing a placement THAT year  ]

 That might be one of those pieces of management information that Norgrove identified as being lacking in the family justice system – what are the outcomes for children who come into the public law Court arena?   Would be much better to have some proper hard and fast statistical analysis, rather than my hamfisted bungling. 

 [By the same token, it seems to me utterly ludicrous that we have figures on the number of CASES, when what we want to know, what we actually care about, surely is the number of CHILDREN?  ]

 But it does seem to me, that there’s serious potential for more children to be coming into the State system than the State has resources to deal with. There are, of course, three ways of tackling that problem (if indeed it is a problem). Reduce the number of children who come IN to care proceedings, reduce the number who come OUT needing placements outside of families, and increase the number of adopters who can meet the need where the Court have made that serious decision. 

 I am in some doubt as to whether the Family Justice Review changes are going to reduce the numbers of children coming IN, or the numbers coming OUT. 

 Of course, I could quite easily be wrong, and just be a pessimist clutching at lampposts in the absence of straws.

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Avoiding catastrophes

Posted on April 26, 2013 by suesspiciousminds

 The peculiar, and desperately sad, case of Re C (A Child) 2013. 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/431.html

This is a Court of Appeal decision which has hit some of the national press. It is the one where a father learns three years after the event that he has fathered a child, and worst still, learns that the child has been made the subject of a Care and Placement Order and placed with adopters.

 He sought to oppose the adoption order, and this was refused. What happened then, was that a Judge heard the application for adoption and made the order (knowing that there was a desire to appeal the decision refusing leave to oppose the adoption order, but it being uncertain as to when that would be).

  1. C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C’s mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.
  1. Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.
  1. The appellant had had a brief sexual relationship with C’s mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.
  1. In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority’s agreement to carry out a DNA paternity test.
  1. On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C’s father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking “permission to defend/oppose the adoption order” and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question “Does your application include any issues under the Human Rights Act 1998?” the answer given was “No”. Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C’s mother which set out her position very clearly: “I do not want my child … to be adopted by strangers … I wish to ask the court to place him with his natural father or allow his sister to adopt him”.

The Court made it plain that the Local Authority in the care proceedings, having been assured by mother throughout that the child’s father was a man “R” and that the true father had never come into the equation, were entitled to proceed on that basis and not have to try to investigate the true paternity. By the time the father came forward, the child had already been in the potential adoptive placement for two years and the application was lodged.

The Court of Appeal considered the case and concluded that the initial decision to refuse leave to oppose was correct, and certainly not plainly wrong.

  1. Before Judge Redgrave, the appellant had to clear two fences. First, he had to establish (as he did) the necessary change of circumstances referred to in section 47(7) of the 2002 Act; second, he then had to satisfy the court that, in the exercise of discretion, it would be right to grant permission: Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para [18]. In relation to the second, the question fell to be decided by the application of section 1 of the 2002 Act to the facts of the case, so the paramount consideration for the court was C’s welfare throughout his life: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069, paras [27], [55].
  1. At this stage a “stringent approach” was required: Re W, para [28], approving the approach adopted by McFarlane J, as he then was, in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para [15]. In Re W Thorpe LJ expressed it in this way (para [20]):

“I am in no doubt at all that where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family. Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had reacted to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity.”

That is, of course, a reference to what Lord Collins said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para [33].

  1. Ms Fottrell, for whose admirable submissions I am indebted, as is the appellant, distilled her submissions into seven propositions:

i) That Judge Redgrave failed to have due regard to the factors listed in section 1(4), and in particular section 1(4)(c) of the 2002 Act (“the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person”).

ii) That she failed to have due regard to section 1(4)(f) (“the relationship which the child has with relatives, and with any other person in relation to whom the court or agency continues the relationship to be relevant …”).

iii) That she failed to have due regard to the real possibility that C could be placed with relatives and that, considering the known strengths of the appellant and his sister as carers, the merits of his application should have been considered at a full hearing.

iv) That she was disproportionately influenced by the possibility of disruption to the placement, which was not the only consideration when assessing the welfare of the child, and was wrong to conclude and rely on the assertion that a further move would place C at risk of suffering further harm.

v) That she was wrong to conclude that it was implausible that the appellant did not suspect that he was the father of C, having not heard evidence from him.

vi) That she was wrong to conclude that his immigration status was in any way relevant to her analysis.

vii) That, having concluded that she could not assess the ability of the appellant to care for C but that she could not conclude he had no prospect of succeeding (there was a recent assessment of him as a co-carer for M and he was actively caring for a child at the time), she was wrong to conclude that he should not be granted leave to oppose the adoption.

  1. Ms Fottrell identifies the central question for us as being whether Judge Redgrave’s approach was too stringent. She submits that the judge’s approach was to assume that C’s welfare would be adversely affected by a purposeful delay and that too great weight was placed on the fact that C was in the adoptive placement at the time of the application. She supplements this with the additional submissions that Judge Redgrave erred in not considering whether the appellant’s application had ‘solidity’ and in giving insufficient weight to the merits of the appellant’s application to oppose, its prospect of success and the likely benefit to C of being placed with his biological family.
  1. Ms Fottrell also pointed out that, in distinction to both X and Y and Re W, the merits of the appellant’s case had never been considered by any court in the course of either the care or the placement proceedings.
  1. Ms Fottrell relied upon the protection afforded the appellant by Article 8, both in relation to his “private life” and also in relation to his “intended” or “potential” “family life” as expounded in Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, paras [60]-[62], Schneider v Germany (Application No 17080/07) (2011) 54 EHRR 407, paras [82]-[84], and, most recently, Kautzor v Germany (Application No 23338/09) [2012] 2 FLR 396, para [75].
  1. Mr Perkins on behalf of both the local authority and the adopters submitted that Judge Redgrave was invested with a discretion that she properly exercised, having regard to the section 1 criteria, in a way that sits comfortably with the current domestic and Strasbourg jurisprudence. Further, he said, even if, which he did not accept, she had included additional matters in her consideration (ie, the appellant’s immigration situation) which she perhaps should not have, her overall assessment and decision was not so plainly wrong as to enable us to interfere.
  1. For the purposes of the appeal, Mr Perkins was willing to assume that the appellant in combination with his sister could provide for C’s physical needs, and to a good standard. But, he submitted, sadly for them the combination of all the circumstances in this case falls well short of Thorpe LJ’s “solidity” test. What he called “the unchallengeable obstacles” are a combination of:

i) the fact that the appellant and his sister are strangers to C, now aged 4; not wishing to be unkind, the sad reality is that they have no relationship whatsoever with him;

ii) the fact that for the first three years of his life C was in foster care, so effectively he has had no experience of natural parental care;

iii) the fact that he has spent the last two years with his adoptive parents and has become settled and attached, no doubt secured by those around him in their expectation that this was to be his permanent home;

iv) the fact that, as the judiciary has already noted positively on a number of occasions, his adoptive placement more than adequately meets his needs, particularly for a placement within a culturally appropriate home; and

v) the risk that setting in train the process now being proposed by the appellant could seriously undermine C’s stability and strike hard against his best interests.

  1. Despite everything that Ms Fottrell has so attractively argued on his behalf, and recognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child, I was by the end of the argument on the point entirely satisfied that the appeal against Judge Redgrave’s order had to be dismissed. Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?
  1. In my judgment, Judge Redgrave’s decision as set out by her in a very clear and lucid judgment displays no error of law, no error of approach, whether viewed from a purely domestic perspective or, as one must, from the broader Strasbourg perspective. Nor can it be said that her exercise of discretion was flawed or that it was plainly wrong. In my judgment it was neither. Judge Redgrave addressed the relevant factors and gave them what she thought was the appropriate weight. That was a matter for her, and we cannot interfere unless she was plainly wrong, either in her evaluation of the weight to be attached to them, whether individually or collectively, or in her overall conclusion. She was not. Despite Ms Fottrell’s submissions to the contrary, I do not accept that Judge Redgrave failed to have due regard to, or, as the case may be, was unduly influenced by, the various factors to which Ms Fottrell has drawn our attention

They were not terribly happy that the second Judge, following that refusal of leave to oppose, and knowing that an appeal was being contemplated, went on to make the adoption order.  IF the father had won his appeal against refusal of leave to oppose, that decision to make the adoption order could have made matters very difficult indeed, as overturning an adoption order once made is not straightforward.

  1. The dismissal of the appeal against Judge Redgrave’s order renders academic the proposed appeal against Judge Altman’s subsequent order. I cannot pass it by in silence, however, not least because of the very serious implications if the appeal from Judge Redgrave’s order had in fact been allowed.
  1. It is quite clear that the appellant has locus – status – to appeal against the order made by Judge Altman even though he was not a party to the proceedings at the time it was made: Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [141]. The real question is whether his proposed appeal would have been successful.
  1. The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: Webster para [149]. In that case, the adoption orders “were made in good faith on the evidence then available” (para [177]) and therefore stood, even though the natural parents had suffered a “serious injustice” (para [148]). Webster can be contrasted with Re K (Adoption and Wardship) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (page 227) “inept handling by the county court of the entire adoption process” and (page 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application.” Butler-Sloss LJ held (page 228) that:

“there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

  1. Whether the appellant would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.
  1. In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.

The Court of Appeal (and this is the President of the Family Division, who is even now beavering away on the revised Public Law Outline) had this to add, about the case generally

I cannot part from this case without expressing my very great concerns about what it reveals of our system. The history of the events since 7 February 2012 as I have set them out makes for depressing and profoundly worrying reading. This is not, I stress, necessarily a criticism of those involved, most of whom did what was required of them; it is a criticism of a system whose inadequacies and potential for catastrophe have here been all too starkly exposed. No humanly devised system can ever be foolproof, but we must do everything to ensure as best we can that future catastrophes are prevented.

 

Where a challenge to the making of a Placement Order, or any order consequent to that, is being contemplated, the Court of Appeal say that the following steps MUST be taken  [and adds “when I say must, I mean MUST”]

  1. 48.   i) The appellant’s notice must be filed as soon as possible.

ii) Those advising the appellant must give careful thought to including in the appellant’s notice any appropriate application for a stay or other interim relief.

iii) If a transcript of the judgment being appealed against is not then available:

a) the appellant’s notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and

b) the transcript must be ordered immediately.

iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

a) the fact of the making of the application; and

b) the date(s) of any hearing of the application.

The President also indicated that steps are to be taken to deal with the particular logjam in this case, which was that the case could not be appealed until the transcript of judgment was available and that obtaining this transcript had taken many many months, thus preventing a Court of Appeal Judge looking at the appeal application at permission stage and giving directions (which might well have included that any application for adoption should be stayed until the appeal was determined).  None of that really helps, because in this case the LSC would not award funding for the appeal until THEY had seen the transcript, and understandably, counsel drafting the grounds of the appeal needed to see the transcript in order to provide the advice for the LSC that an appeal had a reasonable prospect of success.

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“It is not down on any map, true places never are”

Posted on April 8, 2013 by suesspiciousminds

The DFE Adoption maps and what we can learn from them, if anything

The DFE have published their adoption maps, whilst repeating over and over that these are not a  judgment on local authority performance. Much in the same way that listing all of the countries job centres in tabular form, with those who have achieved the highest number of stopping people’s benefits is not a league table, or an indication that stopping people’s benefits is considered to be a good thing.

 Anyway, I love maps, and I thought there were some interesting things to emerge from them. Plus, the chance for this title, which is probably my favourite line in all literature (it is from Moby Dick, and the nearest competitor is probably Hotspur’s rejoinder to Glendower’s  “I can call spirits from the vasty deep”   – “Why so can I, or so can any man. But do they come when you do call for them?” )

 

Also, it lets me make reference to another of my favourite passages, from The Hunting of the Snark

 He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.

 

 carroll-map-thumbnail

 

I’m not sure that the DFE maps constitute a map we can all understand, though there are some who would claim it has as much meaningful content as the map in Hunting of the Snark.  Certainly, if we apply the Bellman from Snark’s rationale that “What I tell you three times is true”  then it is not intended to be a comparison of Local Authority performances    *

 

[And for an excellent analysis of the “What I tell you three times is true” motif,  see this wonderful piece from Inky Fool  -  which tells you the derivation of that annoying habit people have of politely refusing something twice and then accepting it at the third time of asking. It all arose with a polite convention about what you are supposed to do if someone asks you to become a bishop. I wish that I had written it, but as I liked it so much, the least I can do is steer others towards it. If you are ever asked to become a bishop, now you know the polite convention

 

http://blog.inkyfool.com/2010/04/nolo-episcopari-and-rule-of-bellman.html  ]

 

Enough literature, on with the maps!

http://www.education.gov.uk/childrenandyoungpeople/families/adoption/a00219985

 

The main DFE caveat with the maps is that they only include figures for adopters approved by Local Authorities and none by any voluntary adoption agencies.  The main gripe from the Local Authorities is that looking at a map just tells you something bald, and you can’t compare, say Leicestershire and Liverpool without knowing something about the size of population and social problems that each might have.

 

Anyway,  there are several maps, but the one I was most interested in was Map B

http://media.education.gov.uk/assets/files/pdf/m/map%20b%20number%20of%20children%20waiting%20for%20each%20adopter.pdf

Map B does a clever little exercise – for each Local Authority, it takes all of the children in that area who are waiting to be adopted  (i.e where an Adoption Panel / Agency Decision Maker has considered that adoption is the plan and where a Court has made a Placement Order) and compared that to the number of adopters that that Local Authority has approved.

 In an ideal world, you would want 1 adoptive family approved for every child that you are looking to place   (maybe even ideally slightly higher than that, to give you some choice, though of course, some adopters are looking to adopt 2 children).

 

What it tells you is, notionally speaking, if a Local Authority decided that they were going to match every single adoptive family with a child on their books,  whether they would have adopters left over, or children left over. And how many.

 For children waiting to be adopted, this map is bad news. The lowest category, the darkest blue, is where there are 2 or fewer children waiting for each approved adopter.

 The highest category, the yellow, is where there are between 11 and 23 children waiting for each approved adopter.

 Now, whilst some adopters are prepared to adopt two children (and thus the navy blue Local Authorities might be able to clear their children waiting for adoption if they could theoretically match up all the children with all the adopters), there aren’t adopters waiting to adopt eleven or twenty three children.

 

Meaning that if one did that notional exercise, matching every adopter up with as many children as they were prepared to take, the yellow authorities would have barely put a dent in the children needing to be placed (maybe reducing the number of children waiting by 20%, maybe 10%, maybe even less)

 Green authorities have between 6 and 10 children waiting for each approved adopter.

 So, the more yellow and green authorities there are, the worse it is for children waiting to be adopted.

 How many dark blues are there?  I made it about fifty.

 And yellows? I made it about 13, with 19 greens.

 Bear in mind, that what often happens is that one local authority places children for adoption with adopters approved by another local authority. But you can see that even the best authorities don’t have adopters left over (compared to the number of children that need families) and that even spreading out the yellow and green authorities additional families across the country doesn’t solve the problem.

 Nationally, we have far more children needing to be adopted   (* Anticipating the comments, by which I mean children where a Court has heard evidence and argument and decided that adoption is the right plan for them) than there are people approved as adopters.

 Equally, you can see that whilst the Midlands is pretty evenly matched between children needing placements and placements available, the East of the country and the South/South East of the country is pretty bad, with there being no neighbouring counties to raid for adoptive placements, since they are all struggling to meet their own demands.

 It is a shame that the independent adoption agencies figures are not in there, it may well be that those figures would dramatically alter the position.

 It is a worry, however, that the demand for adoptive placements is substantially outstripping the supply of such placements. That leads to delay, of course, it leads to some children not being able to be found placements, and inevitably it needs to a situation where the chance to place difficult children (in large sibling groups, or with profound problems, or with a family background of mental health problems) becomes much harder.

 Perhaps the Government’s ambitious thinking that there are four million potential adopters out there and that more can be converted from potential to actual if the process is made less bureaucratic and terrifying is right, and that the problem can be addressed by better recruitment.

 [There’s a curious little spreadsheet tucked away with some hard data

 http://media.education.gov.uk/assets/files/xls/a/adoption%20scorecard%20underlying%20data.xls

 I liked looking at the average duration of care proceedings in each authority, given that we are told that 26 weeks will be coming in, and we have been ostensibly working on an average target of 40 weeks for  NINE YEARS now.  Yes, the Protocol, god rest its soul, would have been ten years old this November.

 I counted 11 of the 149 authorities that had an average duration of care proceedings of 40 weeks or under.

 Let’s look at 50 weeks – that being 25% longer than the current target.  I counted NINETY SIX authorities where the average duration of proceedings was 50 weeks or longer.  There were some, not many, but some, that were over 60 weeks  (i.e 50% longer than the current target)   - 18 in all.  

 So actually, there are MORE authorities going 50% OVER the current target than there are going UNDER the current target. After NINE YEARS of pressure to get the duration down to 40 weeks  ]

 

 [A completely irrelevant footnote - as a blogger, I have a spam filter, and I get the most extraordinary spam comments, most of which are thinly disguised links to fake sunglasses or handbags, some are extraordinary Williams Burroughs-esque stream of consciousness masquerading as genuine dialogue. Today, however, I got a spam link from someone purporting to be from a website named "Toddler-hitting.org"   which might really have missed its target audience completely. I did not follow it up, I don't think its likely to be my cup of tea]

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“To lose on a case once in the Court of Appeal may be regarded as a misfortune, to lose three times on the same case looks like carelessness”

Posted on March 4, 2013 by suesspiciousminds

The misadventures of the LA in the case of Re B  (2012)  (the Slovakian grandmother case)

 This is indeed, the third time that the Court of Appeal have heard the case, and on each occasion, the LA have lost. They have had a steadily increased judicial kicking each time that they did so, and the Court of Appeal almost seem to be running the case management of the case. 

The latest instalment is here

 http://www.familylawweek.co.uk/site.aspx?i=ed111948

It involves a case where the LA had put forward a plan of adoption for children and rejected a grandmother, who was living in Slovakia. At the very first appeal hearing, the Court of Appeal determined that adoption was not the right plan for the children and that the children should be moved over to Slovakia, although that would require a transition and a build-up of contact.   

That was on 9th November 2011.

 The case came back to the Court of Appeal on 16th November, with the LA seeking amplification and also seeking to introduce some fresh evidence about grandmother (including an allegation that she had attended a meeting with the mother, posing as the mother’s interpreter)

The Court did not think that these fresh allegations were any impediment to the plan, and were gravely disappointed that the LA had not moved on with the transitional plan. They delivered a judicial ‘get on with it or we will take your ICO away from you and run things ourselves’ warning.

It was therefore pretty surprising that the case came back for a third time on 14th December, with the Court of Appeal being asked to decide between three plans for transition, and there having been no increase to contact since the Court of Appeal had decided that these children were going to move to Slovakia and live with the grandmother.

The Court were not best pleased that the LA had unilaterally decided that they weren’t going to implement the Court of Appeal’s decision.

The Court of Appeal expressed this fairly witheringly

3. The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.

4. The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered. The transition is now more difficult to manage and plan than it was on 16 November. A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

 

It emerged that the LA had been unhappy with the Court of Appeal decision and been taking advice about appealing it, and had decided that they wished to do so. They had taken the decision that increasing grandmother’s contact and building up the relationship might hamper their appeal and thus had not implemented a transitional plan as the Court of Appeal had asked them to do (and subsequently pressed them to do)

They had not, at the November hearings, sought leave to appeal, or a stay, or indicated that they were contemplating that course of action.

The Court was therefore given one plan of transition to grandmother’s care drawn up by those representing grandmother, one by the Slovakian authorities (who were obviously perplexed by the scale of the resistance to these children moving to their country) and one that had been drawn up by the LA  (obviously slowing the pace of transition to give them the chance to go and get their behinds kicked by a larger number of Judges in an altogether different building. Also see below for the timing of the creation of the plan)

 Always a risk in having three plans before a Court that they decide that none of them pass the Goldilocks test, and make their own, which will be ‘just right’ and that’s exactly what they did.

 

9. Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November. On that occasion we relied on the responsibility of the local authority. We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court. In that we have been disappointed.

The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.

 

10. How then should we be directive? If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova. But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11. Accordingly I would reject all three proposed transition plans. I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.

 

 

That pretty much settled that. The Court then considered whether this should be done under an Interim Care Order, or a Residence Order, with grandmother agreeing to the children being section 20 accommodated during the transition period. There was a two-to-one split on that, with the Court opting for a Residence Order and s20 consent.

 Leave to appeal was also refused, the LA were directed to get any formal application for appeal in by 19th December (I think 3 working days later) and the stay was refused.

 It would be fair to say that Mr Norton, representing the LA, whom I know and like, has had more successful days in his professional career.

 

14. It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose. If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division

 

This case does point up the difficulties in trying to get the Court of Appeal to case manage a case, the family were very lucky here that they were able to get hearings so quickly. It also shows that you defy the Court of Appeal at your peril, and that if you do intend to appeal a decision that they make and not begin implementing it, you had better put everyone on notice.

 It doesn’t seem that any applications for costs were made, but the need for the December hearing must have sailed pretty close to that point.  I don’t know if they lodged their appeal, they may have been tempted, given that they had three different Court of Appeal judgments to appeal against…

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Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

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Statutory orphans 2 (erm, “This time it’s practical”?)

Posted on January 24, 2013 by suesspiciousminds

 

The High Court have given some guidance [in A City Council v DC 2012]  on how to deal with applications by a Local Authority to revoke a Freeing Order when their plan is no longer adoption. I suggest that it may have implications for the large number of imminent-ish applications to revoke Placement Orders in similar circumstances.

 

That avalanche is hanging over us, just waiting for either the Minister to give a hearty shout or for the starting gun on adoption target timescales to be fired, and the whole lot will come down.

 

look out below

look out below

You may recall that Mr Justice Peter Jackson gave a scorching judgment castigating the LA and the Independent Reviewing Officer for leaving children in limbo and not making revocation applications where the Freeing Order was no longer being contemplated as a prelude to adoption.  

 

That was in Re A, S and Others v Lancashire 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html 

 

 

The blog on that is here:-

http://suesspiciousminds.com/2012/07/02/definition-of-chutzpah/

 

The case is A City Council v DC & Others 2012  and can be found here:-

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/8.html

 

There’s a curious esoteric debate about what happens when a Freeing Order is revoked, whether the Court should  revive the Care Order, or as suggested by the parents advocates, make an Interim Care Order and get stuck into a root and branch review of the new care plan. The Court decided that the former, as set out by lots of previous case law, is the correct approach.

  1. Mr. Nuvoloni on behalf of the father was in his written material understandably preoccupied with his lay client’s human rights. He ‘floated’ in his written submission an argument that the new s20(3)(iia) could, and should, be interpreted as permitting the court to make an interim rather than a full care order upon revocation of the freeing order. He submitted that to deny the parents the opportunity to challenge or scrutinise an up-to-date care plan, through the medium of an interim care order, would be accepting an interpretation that offends against the requirement of the Human Rights Act 1998 and in particular section 3 of the Human Rights Act 1998 which requires that primary legislation, in so far as is possible, is to be read and given effect in a way compatible with Convention rights.
  1. Mr Nuvoloni submited that the revival of a full care order would amount to a breach of Article 6 and 8 of the Human Rights Act of both the parent and child.
  1. In oral argument Mr Nuvoloni revised his position and accepted that the interpretation he proposed which would allow the court to make an interim care order with a view to scrutinising a new care plan, stretched the wording of the statute beyond breaking point. Further he accepted that if a procedure was adopted by the courts whereby the parents were given sufficient information to enable them to obtain legal advice and, if advised, thereafter to make an application for contact or the discharge of the care order, then their Article 6 and Article 8 rights as reinstated parents would be adequately protected.
  1. Mr Nuvoloni, in my judgment was wise to make the concessions he did and to concentrate, (as he has done most effectively), on how best the court should now proceed. From a statutory interpretation point of view, the section is, in my judgment capable of only one interpretation; the wording is to revive……any care order within the meaning of that act. The use of the word revive in the statute shows that what is intended is that the full care order (made immediately prior to the freeing order), is to be restored and accordingly a care order will be the order determining J’s legal status following the exercise of the court’s inherent jurisdiction to revoke the freeing order.
  1. Prior to a freeing order being made, it was necessary for the court to have made a full care order, there is therefore no other order that could be revived pursuant to s20(3)(b)(iia) other than the care order made immediately prior to the freeing order. The wording of the statute is unambiguous. It does not provide the court with any residual discretion; for example to replace the freeing order with such order as the court thinks fit having scrutinised a care plan or alternatively with an interim care order made earlier in the original care proceedings.
  1. I note that both Black J in Re J and Peter Jackson J in A and S children v Lancashire CC [2012] EWHC 1689 (Fam) (para 95) not only made full care orders upon the revocation of the freeing orders but that all parties in both cases accepted the interpretation of the Act which is now accepted on behalf of the father.
  1. The revival of a full care order is not in my judgment incompatible with either Article 6 or Article 8. The effect of section 20 AA 1976 as amended, not only revives the care order, but also reinstates parental responsibility to the former parents. Those parents, in the exercise of that parental responsibility, are thereafter entitled to make an application for contact or to seek the discharge of the care order (subject to the exceptions in the guidance referred to below). In the meantime the care order regularises the child’s legal position whilst recognising that the child is, and often has been for many years, ‘in the care’ of the local authority.
  1. A local authority seeking to regularise the legal position of statutory orders will, as a matter of course, have to file a statement in support of their application for the revocation of a freeing order. Such a statement will, of necessity, set out not only the history of the child since he or she was freed for adoption but also that child’s present circumstances; the statement will be served on the former parents who will be parties to the proceedings. It follows therefore that at an early stage in the proceedings (subject to the exceptions in paragraphs 42(ii) and 42(iii) of the guidance set out below) the parents will have an opportunity to make an application for either contact and or the discharge of the care order.

 

 

All of that is more law geeky than practical, but the parties asked the High Court for practical guidance on the procedure to be followed in these applications, and the High Court, in the form of Mrs Justice King duly obliged.

 

  1. I am grateful for the assistance given by Counsel and to the local authority solicitor in this case in putting together this procedural guidance which has been approved by the Acting President Mr Justice Holman.

A: ISSUE & APPLICATION

i) The general rule is that any application by a local authority asking the court to exercise its inherent jurisdiction in order to revoke a freeing order should be made in the High Court on notice to the former parents including those former parents who have made a declaration under s18(6) of the Adoption Act 1976.

ii) Exceptionally an application may be made without notice (and in such circumstances the remainder of this guidance shall be departed from as appropriate). When making such an application the local authority must file a statement in support giving reasons for seeking a without notice order by reference inter alia to the principles in KY v DD [2011] EWHC 1277 (Fam) (a wardship case) where Theis J, (giving guidance endorsed by the President of the Family Division), re-emphasised the established principles in relation to without notice applications as set out in Re W (ex parte orders) [2000] 2 FLR 927; Re S (ex parte orders) [2001] 1 FLR 308; B Borough Council v S and anor [2006] EWHC 2584 (Fam),

iii) Similarly any application to withhold any of the information, which would otherwise be included within the application as set out below, must be made subject to the principles set out by the Supreme Court in Re A (A Child) [2012] UKSC 60 and be accompanied by a statement in support of the application.

iv) Good practice would require that, if they can be traced, the former parents should be told of the forthcoming application face to face by a social worker and be given some sort of explanatory note to help them to understand the nature of the application, which note will thereafter be of assistance to them in obtaining legal advice and public funding.

v) The application should be made using Form C66 and the requirements for a copy of the child’s birth certificate and or a copy of the entry into the Adopted Children Register should be dispensed with, (if necessary by order made at the first hearing).

vi) The following documents should be filed in support of the application and served, together with the application on the former parents: [Permission for the disclosure of those documents which were generated in the earlier care proceedings should be sought from the trial judge (or local Designated Family Judge if the trial judge is unavailable), prior to issuing the application in order to ensure that service of all documents takes place at one time]

a) Copies of the care order and freeing order

b) A transcription or note of judgment from the previous care proceedings

c) The final care plan from the care proceedings

d) A short neutral chronology covering significant events prior to the child’s admission to care and significant events following the making of the freeing order

e) The children’s guardian’s final report from the care proceedings

f) The Looked After Child (LAC) review minutes, usually for the last two years preceding the making of the application, but in any event to include the LAC review where the local authority made its decision to change its care plan from one of adoption.

g) An updated care plan

h) A statement by the allocated social worker or other appropriate person which should include the following information:

i) The child’s social history including details of any placement breakdown, all placement moves and of any ongoing contact whether with the former parents or either of them or with siblings;

ii) Any evidence of the child’s wishes and feelings of which the social worker/carers are aware; [there should ordinarily be no direct discussion with the child(ren) about the consequences of revocation, including any attempts made to seek to ascertain their wishes in relation to contact prior to the first directions hearing].

iii) Any evidence of the wishes and feelings of the former parents if known.

iv) Details of the involvement of external agencies including therapy providers, police and other local authorities

B: FIRST HEARING/ DIRECTIONS:

(1) The application shall be listed for Directions before a High Court Judge or before a Circuit Judge sitting as a High Court Judge sitting pursuant to section 9 of the Supreme Court Act 1981. It may be that the Family Division Liaison Judge for each circuit may wish to create a list of Circuit judges approved to deal with such applications in order to avoid delay in the allocation and hearing of the cases.

(2) At the first directions hearing:

(a) The court will decide the preliminary issue as to whether it is in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents. It is envisaged that by the very nature of the application in most, if not all cases, it will be appropriate formally to revoke the freeing order at this hearing. If for any reason the freeing order is not revoked at this stage it should be relisted for determination as soon as practicable.

(b) The making of the order revoking the freeing order will:

i) Revive the original care order

ii) Revive the appointment of any testamentary guardian

iii) Give parental responsibility to the mother

iv where appropriate, in accordance with the relevant statutory provisions, give parental responsibility to the father.

(c) Upon the revocation of the freeing order, the care order having been revived and parental responsibility having been reinstated, the court should give directions for the future management of the case:

i) Consideration should be made as to whether the court should make an order authorising the local authority to refuse contact between the child and the parents

ii) The court should make directions requiring the parents to make any application to discharge the care order/apply for a contact order within 56 days (or such other period as may be specified by the court)

iii) The court should include a request that in the event that the parents, or either of them, issue an application that the original children’s guardian should, if possible, be appointed to represent the child(ren) and all the documentation filed should forthwith be served upon the original or newly appointed children’s guardian.

iv) The court should consider whether any other party to the previous proceedings should be served with notice of the proceedings and, if so, what if any documents should be served.

v) The court should list a further directions hearing at which directions will be given consequent upon any application for discharge of the care order/application for a contact order made pursuant to the direction made at para 2(c)(ii) above

vi) In the event that no application has been made by either parent or any party served under the direction at para 2(c)(iii) (and the court is satisfied that it is appropriate to do so), the court will ordinarily conclude the proceedings by continuing the s34(4) CA 1989 order where appropriate and making any appropriate order for costs.

 

 

 

Stripping out all of the references to the High Court, I would suggest that most of this is going to be applicable to the many applications for revocations of Placement Orders that are forthcoming.

 

 

[If you aren’t aware of this budding avalanche and the reasons for it, it is essentially this: –

 

where an LA applied for a Placement Order and obtained one, but haven’t been able to get an adoptive placement and have since stopped looking, there’s a triple pressure to make applications to revoke such Placement Orders :-

 

  1. The fear that the human rights claims in Re A, S and Others v Lancashire might be broadened beyond Freeing Orders and into Placement Orders.
  2. The murmurings from Ministers that they will be expecting LAs to clear the decks of all such cases, so that there is proper information on which children subject to Placement Orders are actively waiting for placements, rather than the waters being muddied with children subject to Placement Orders where nobody is searching for a placement any longer.
  3. The desire of the LA’s for the same reason, to want to clear the decks so that the figures on ‘average wait for adoptive placement’ is not skewed by children who have been subject to Placement Orders for two years or more when the search has been given up  

 

 

The reason this avalanche has not yet translated into court applications is because nobody really knows whether this will just be a simple standalone “is there a need for the Placement Order to continue if no adoptive placement is being sought?”  case, or whether it will be a reopening of the entire case, fresh assessments of parents, challenges to care plans, contact.  If the former, making the applications will be simple and straightforward, if the latter, issuing them will be like pushing many many new sets of care proceedings into an already overloaded system.

 

 

And yes, there are decent arguments that where a parent believed their child would be adopted and the search has been given up, that this should be back before the Court with ‘all to play for’               ]

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Neglecting neglect

Posted on January 21, 2013 by suesspiciousminds

 

The Parliamentary report on child protection, and a discussion of it.

One of the nice things about doing this blog is that some of my visitors will from time to time send me something that I might otherwise have missed.  I knew that this Parliamentary enquiry had been going on, but not that the report had yet been published.

 

You can find it here:-

 

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137.pdf 

 

 

They seem, on the whole, to be broadly supportive of the system, which is no doubt a disappointment to many of my readers.  They do recognise that there are serious problems within it, and make some recommendations.  They particularly felt, as the mainstream media picked up, that the child protection system isn’t a great fit for adolescents and that they get marginalised by the process.

 

 

One of the topics they looked at was neglect  (see also all of the blog posts I’ve done recently on the neglect and neuroscience issue)

 

Neglect

 

Neglect is the most common form of child abuse in England. Having looked at both the criminal and civil definitions of neglect, we recommend that the Government investigate thoroughly whether the narrow scope of the criminal definition contained in the Children and Young Persons Act 1933 is causing problems in bringing criminal cases of neglect, but we have seen no convincing evidence that the civil definition is insufficient.

 

To get a better picture of the scale of neglect, we recommend that the Government commission research to investigate whether similar situations and behaviours are being classified as neglect in different local authorities.

 

There is evidence that children have been left too long in neglectful situations. To tackle this, child protection guidance for all front-line professionals should include an understanding of the long-term developmental consequences of neglect and the urgency of early intervention. Securing positive outcomes and meeting the needs of the child should come before all other considerations, and there needs to be a continued shift in culture so that there is earlier protection and safeguarding of the long-term needs of children. The Government must be prepared to act if there are signs that improvement in the responsiveness of local authorities to neglect is not being sustained.

In cases of domestic violence, the focus should be on supporting the abused parent and helping them to protect their children, but the interests of the children must come first.

 

 

It did seem to me (subject to rigour in how the research is done) that a piece of research on how neglect is managed throughout the country, and whether there are fluctuations in what is considered to be neglect in different regions, is a valid and worthwhile exercise.  Child protection is a massively expensive and resource-intensive undertaking in this country, and if there are lessons that could be taken from the way certain local authorities tackle and overcome neglect, that would be useful information to share around.

 

 

They also looked at the issue of adoption, and in particular the competing current desires of the Government to speed up adoption and the campaigners against ‘forced adoption’

 

216. We endorse the Government’s current policy emphasis on increasing the number of children adopted, speeding up the process and facilitating foster-to-adopt arrangements. Adoption is clearly the preferred route to permanence and stability for some children. However, the same goal can be achieved by other means and it is vital that the Government and those in local authorities continue to concentrate effort and resources on prioritising stability in placements for all children, whether through longterm fostering, Special Guardianship or residential care. We would welcome greater debate on policies which might bring this about and greater encouragement from Government for these alternative solutions. In particular, while we recognise that an artificial limit on the number of times a child can be moved within the system would be unworkable, there should be increased emphasis in central guidance aimed at limiting the disruption and damage caused to vulnerable children by frequent changes.

 

217. We have listened with sympathy to concerns about widespread ‘forced adoption’, and to the very personal and moving stories that often lay behind them. It is evident that there are rogue misjudged cases with terrible consequences for those involved. This should not happen and those affected are right to fight against such injustice. Nevertheless, the weight of research evidence, matched by evidence to our inquiry, concluded that that the balance tended to lie with authorities not taking children into care or adoption early enough, rather than removing children from their parents without due cause.

 

We note that the Minister spoke of “work in progress” to look at “what further safeguards we might be able to institute whereby there is a sort of appeals mechanism”. This would have to be balanced against the further delay to a permanent solution for the child which would inevitably occur as a result.  An appeals mechanism against “forced” adoption is an interesting idea and we look forward to examining the Minister’s proposals when they are published.

 

 

As do I.

 

I’m rather surprised that the Minister spoke to them about introducing a ‘sort of appeals mechanism’ given that there is already an actual appeal mechanism.

 

So either :-

 

(a)   He doesn’t know that there is already  an appeal mechanism

(b)   He is planning to lower the test for appeals in Placement Order or adoption cases, from mistake in law or the Judge being plainly wrong to something lower

(c)   He is planning to introduce a mechanism whereby the Placement Order or adoption order can be appealed at a different stage in the process  (which would have to be later than at present)

OR even

(d)   That there is a plan for an appeal mechanism for Placement Orders which will sit outside of the legal appeal process, i.e that the appeal would be considered by a body outside the judiciary, and contemplating different principles than at present.

 

 

I’m not sure which of those possibilities I find most problematic, but any of them without a lot of proper thought first is worrying.  

 

 

I noted in the passage above that that the Committee touched upon the evidence of Martin Narey

 

215. The importance of permanence and stability is underlined by the shocking evidence we received of the number of times some children move in the course of their time in care.

 

It is clearly damaging to children to move from one form of care to another frequently; and yet we spoke to children who had moved multiple times—in one case up to 16. Martin Narey told us that he had “met countless children who have had 24 or 25 foster placements and 21 or 22 different schools”.396 He added: “We would never dream of doing this to our children and for some children the very best option for them is [...] high quality residential care”.397

 

 

 

Well, I agree with all of the principles set out there, and I am sure that the Committee really did speak to children who had moved up to 16 times, which is an awful and horrific tragedy. I am also sure, sadly, that there have been children in the care system who have had 24 or 25 foster placements.

 

I am somewhat sceptical, to put it mildly, that Mr Narey has met “countless” such children.  I think this is rather on a par with his comments about having asked to see a child’s social work files which were then literally brought into the room in a wheelbarrow.

 

I don’t think this sort of hyperbolae helps, when it comes from someone helping the Government form really important policy.

 

Every child who has multiple placements is a bloody tragedy. Those children who have had dozens or more are a huge tragedy. Every child who has had 24 foster placements is a disgrace   (there might well be really strong underpinning reasons, usually connected with the child’s damaged behaviour but that doesn’t stop the outcome being disgraceful)  and we really should learn as much as possible from it and stop this happening to any child in the future.  But to suggest that it is happening to so many children that Martin Narey has met “countless” is I think rather disingenuous.  

 

Or perhaps my concept of countless is more than Mr Narey’s – it depends on how good you are at counting, I suppose.

 

[All just my personal opinion, perhaps Mr Narey really has met over a thousand children, which would be around where I’d consider a number to be countless, who have had 25 placements.  I guess if he is disputing my suggestion that he hasn’t met ‘countless children’, he would need to show that he had met a significant number, which would mean him counting them, so they couldn’t then  be countless...]

 

Let me be plain, I consider that a single child who has 24 foster placements is a child too many. I just don’t care much for hyperbolae when giving evidence.

 

The Committee also talked about newer and more specialised forms of abuse and risk, they considered the technological side of things with paedophilia over the internet, child trafficking, child prostitution, forced marriage, and suggested that there was a need to build up specialist expertise in this area, and for those authorities who were encountering it to share their expertise with others

 

We recommend that the College of Social Work take a leading role in co-ordinating and promoting awareness of CPD training in specialised forms of abuse and in encouraging other disciplines to participate in relevant courses. For more general use, if the guidance on specialised forms of abuse is to be deleted from Working Together, the Government needs to make clear where such guidance will be found in future and how it will be updated and signposted to social workers and other professionals. (Paragraph 133)

 

17. We are also concerned that professionals faced with a specific type of abuse with which they are not familiar should have an identifiable source of expertise to consult in person. Local authorities should nominate a specialised child abuse practitioner to lead on such matters. Where an authority has a low incidence of a particular form of child abuse, they should be able to draw on the expertise of nominated practitioners in other authorities. (Paragraph 134)

 

 

 

I think the most controversial paragraph, and certainly the one which will provoke ire in some quarters, will be this one:-

 

 

We welcome the research by Cafcass into applications for care orders and recommend that this work be repeated on a regular basis. An assessment of the reasons behind the local variability in care applications is needed. We also believe that it is essential to promote a more positive picture of care to young people and to the public in general. The young people to whom we spoke were generally very positive about their experiences, including those who had spent time in children’s homes. This is backed by academic research on outcomes. Ministers should encourage public awareness of the fact that being taken into care can be of great benefit to children.

 

In the words of Bill Hicks – “it’s not a popular opinion, you don’t hear it very often”

 

 

Perhaps in that vein, the next Commons Committee will be on “Assessing the Costs and Benefits of using terminal ill people as stunt doubles.”

 

[And I know that makes no sense to you whatsoever if you’re not familiar with the work of Mr Hicks  “I know to a lot of you this might sound a little cruel… ‘Aw Bill, terminally ill stunt people? That’s cruel’…. Well hear me out..”]

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If you’re thinking of placing my baby, it don’t matter if it’s black or white

Posted on November 13, 2012 by suesspiciousminds

[Well, this is almost certainly the only time Michael Jackson has appeared in a blog on child protection...oh, wait, maybe not]

The Government have published its draft proposals to amend the Adoption and Children Act 2002.

They can be found here :-

http://www.official-documents.gov.uk/document/cm84/8473/8473.pdf

The first is a duty on Local Authorities to place children who they intend to adopt in a Fostering for Adoption placement (more usually called ‘concurrency’ placement) if possible.

The second is the removal of section 1 (5) from the Act.

Section 1(5) currently reads :- In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

And it follows section 1(4) which is the welfare checklist.

It seems to be the view of the Government that those meddling politically correct Local Authorities   (can you be politically correct if politicians correct you?)  have been viewing s 1(5) as if it has superior status to s 1 (4)  – in which case, the thing to do would have been to shift it to one item in the welfare checklist, surely?

So they have just nuked it from orbit, that being, after all, the only way to be sure.

So the new section 1(5) will say “In Wales only In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

For some reason there aren’t any politically correct meddling do-gooder social workers, or perhaps there are no ethnic minorities, or maybe there’s some other reason inexplicable to me.

The explanatory notes do suggest that those factors still come into the welfare checklist as part of the child’s background and other relevant characteristics; but will no longer require any additional weight.

I don’t know – I have seen in my travels about the country some quirky adoption panels who wanted to talk at length about the African heritage of someone whose paternal great–great-grandfather had been from Senegal, though the other 31/32nds of their heritage was British and had lived in Britain all their lives.  But on the other hand, I am not as convinced as Michael Gove seems to be that there is a queue of white people desperate to adopt children of ethnic minorities, if only those pesky social workers would let them.

Nor am I convinced that nuking s1(5) has any real impact on s33 (6) of the Children Act

(6)While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made;

So if the child in question had been more example, from parents who were practising Muslims, or Sikhs, I think there are still issues about whether a Local Authority is in breach of s33(6) by not at least TRYING to match with people who will follow that faith. If they search and fail, then so be it, but it seems to me that s33(6) still envisages that a LA will try to have the child brought up in the religious faith he or she would have been brought up in had the Care Order (and by extension Placement Order) were not made.

Unless we’re going to start doing that nifty and little known Adoption and Children  Act trick where you can make a section 21 Placement Order without ever making a Care Order PROVIDED the threshold criteria are made out.  (I’ve only ever done that once, in a peculiar case where the parents agreed s20 of the child and so care order wasn’t needed, but opposed Placement Order)

Anyway, if you have a view on the proposals, feed them back to the Government. They seem to be happy to make policy on about 50 people responding to a consultation, so you may be in luck…

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Are you trying to tempt me, because I come from the land of plenty?

Posted on October 19, 2012 by suesspiciousminds

A discussion of the South Australian Parliamentary apology for forced adoptions.

[I have edited this, due to stupidity on my part on not realising that the Australian definition of ‘forced adoption’ is different from that used by critics of our UK system. It nagged away at me, so I looked at it more carefully and cleaned this up. Apologies to anyone who has had to read it twice, and potentially been given a misdirection by the first version, which was rubbish. My apology is heartfelt, but not as moving as the Australian apology that I'm blogging about]

The Australian term ‘forced adoption’ refers to the policy in the 60s and 70s of compulsory and wholesale removal of babies and infants from Aboriginal mothers (*and I am corrected by a helpful commenter, also from white mothers, both in massive numbers)  and placement with more middle class  families.  It is vital to realise that this policy was not only lawful, but came about because professionals who believed this was in the best interests of the children had persuaded legislators that it was right.  The value of the apology is therefore chiefly about recognising that what can be accepted good practice on the State’s role in the lives of children can in later years seem not only catastrophically wrong, but actually abusive.

The Australian ‘forced adoption’ , although much more pernicious and racially dubious, is more akin I think to our UK Victorian values whereby unmarried mothers either gave up their babies or were committed to madhouses.

I know that this is a different country, and I don’t like the term ‘forced adoptions’  (just as, I suspect, Ian Josephs of the Forced Adoption website doesn’t like an awful lot of the terms that are used in Court proceedings, like ‘family justice’, so fair play)

I’m aware that Australia’s level of adoption is about half that of the UK, and much much lower than the US.  I suspect that adoption remains an emotive topic in Australia, and some of the language used in the apology can really be embraced by the critics of our current system.

But Australia doesn’t seem all that different to us (apart from the being tanned and good at sports thing).  We have a common language, and a fairly similar country. So when they condemn the practice of adopting children against the wishes of the parents, it bears a bit more listening to than when you hear that some country that we share no cultural overlaps with have done it.

I’m not in a position to argue whether the UK approach is right, or the Australian approach is right, but if two countries with fairly similar outlooks on life and one presumes broadly similar social problems, can reach such markedly different conclusions, then there’s a genuine debate to be had.

  In any event, it highlights the point that what is culturally acceptable and considered good practice may appear abhorrent to a later generation, and we should have an eye on the fact that dogma can be wrong.  No doubt our critics will say that such an apology may come in the future, and is long overdue. Who am I to say that they are wrong? If you had asked the Australian legislators and professionals whether history would judge them harshly, I’m sure they would have robustly denied this as a possibility.

This bit is from the Premier,  John Wetherill

“These adoption practices were the product of multiple failures. They failed to meet a basic standard, whether or not they were in accordance with the law at the time. They reflected a failure to apply a simple test of human conduct – a test which we should all try to apply to ourselves every day. They reflected a failure to ask what has become a famous question: how would I feel if this were done to me? For those failures, and for everything they led to, we are sorry…”

 

“We apologise for the lies, the fear, the silence, the deceptions. We apologise for the lack of respect, the disbelief, the grief, the trauma and loss. We offer this unreserved apology not just as an act of atonement but as an expression of open-hearted admiration and support for those to whom it is owed. I commend the motion to the house.”

And this bit is the speech given by their equivalent of Ed Milliband, but don’t hold that against him, he seems like a nice chap.  You can read that HERE

http://www.johngardnermp.com.au/parliament/speeches/951-18-july-2012-forced-adoption-apology.html

but I’m going to publish the whole thing, because it is (A) interesting and (B) it took me forever to find it, so at least publishing it makes it slightly easier to find for someone else.

Mr GARDNER (Morialta) (11:36):Today our galleries are full to overflowing. It is sadly ironic, perhaps, that on a day when we gather here as a special sitting of this house to acknowledge the past adoption practices that have caused such distress, it is because of another overhang of the 19th and 20th centuries—the asbestos in the House of Assembly chamber—that we are denied the opportunity to have that chamber available, where so many more people might have had the opportunity to see this directly.I welcome all those mothers, sons, daughters, family members and other people who have been affected to our galleries today. I acknowledge also those in other rooms of the parliament who are watching this live and those people who are watching the web stream. We are grateful that that has been made available on this occasion. Many more people, of course, are watching through that online.I recognise the contributions made by the Premier, the minister, and the Leader of the Opposition on behalf of the Liberal Party in particular, but also in seconding the motion to the parliament. This afternoon, members of the Legislative Council will have an opportunity to comment on the apology, and other members of the house in due course.It is an important day for the South Australian community. It is an important day for this parliament and the institutions that this parliament is responsible for. Most importantly, of course, it is an important day for those affected by past adoption practices: the mothers, the sons and the daughters, and their families, so many of whom are here bearing witness today. Madam Speaker, with your leave, I seek leave to directly address my opening remarks to them.

To the mothers who had their babies taken away from them, we know that an apology cannot return a child who was taken for so many years. The loss of a son or daughter taken cannot be restored by a simply apology. Words alone cannot heal the hurt that you have suffered over decades. We hope, though, that they may provide some comfort. You may at least walk from this building feeling vindicated that your community understands that you did not freely give up your child and that your children and your community understand that you never gave up on your child either.

The coercion that led to your child’s adoption, whether it was overt or whether it was subtle, was brutal and wrong. It was inappropriate, it was unethical, it may have been illegal, and today this parliament makes a statement that it is condemned. It is condemned by this parliament on behalf of the institution itself and on behalf of the South Australian community.

On behalf of the parliament, which shares in the responsibility for these actions, we are sorry. In this day and age, children are put up for adoption in South Australia only when there is genuinely no opportunity for family to stay together and we work very hard to ensure that the very few adoptive parents who have this opportunity are everything that they might be; but in our history we have not always been so virtuous.

To the adoptees, to the sons and daughters who were taken at birth, I imagine that your experiences in life have been varied and diverse. Many of you may have been adopted into loving families who did their best for you at every turn. Some of you were not so fortunate, and your negative experiences make this apology all the more important.

Whatever the nature of your experience growing up, you share an understanding, a shared experience, a common bond; only you can truly understand what it is like to go through life for years—decades even—knowing that there is a missing piece. What was done to you, what was taken from you, the denial of a mother’s love and the kinship of your blood brothers and sisters, was wrong, and, on behalf of this parliament, which shares in the responsibility for these actions, we are sorry.

While the centrepiece of this apology is an acceptance and an expression of sorrow for the denial of informed consent when children were taken from mothers at birth, its terms are broad, and with good reason. I commend the government for the framing of this motion. We are apologising for a wide range of practices that have caused hurt and distress. We are apologising for a range of practices that have led to a varied set of experiences.

My own experience was to grow up knowing a beautiful, loving big sister. She was adopted with love by our father and her mother. She has done well in life. She has been successful in her career. She has the most beautiful, charming and caring daughter that any of you here are ever likely to meet. However, what I could not have understood growing up was her sense that there was a missing piece in her life. Nearly 30 years later, she discovered that she had been separated at birth from her twin brother who now lived across the country. Last night she wrote to me on Facebook, in a sign of the times, with her thoughts on what we are doing today. She said:

It is such an important day for all adoptees, their adopted families and their mothers that gave up their babies so many years ago. Tomorrow—

this was written last night—

is a day to reflect on the past. I have been one of the lucky ones who have found both my twin brother…and also been able to tell our birth mother that we do not blame her for what has happened in the past and that we look forward to the future as brother and sister. Thank you for your support in this.

Despite not knowing each other for nearly the first 30 years of their lives, they have a bond of iron that stretches from Perth to Brisbane.

Twins were separated at birth all over the world, just as they were in South Australia, but that does not make it right. That does not make it acceptable. For that, and for so many other practices undertaken in our community by our government and non-government institutions with the endorsement of the parliaments of the day, either tacitly or overtly, we are sorry.

Members of parliament on both sides over the last several months in particular, but for a number of years before, have heard so many stories from mothers and adoptees about things that have happened to their families: stories of mothers prevented from seeing their child during and after childbirth; stories of mums hearing their babies’ cries and wanting to hold them but being denied; stories of mums who could not hear their babies’ cries and wanting to find out why but who were held down and denied the opportunity; stories of mothers drugged to reduce their resistance to the coercion and drugged to dry up their milk.

In originally moving this motion encouraging the government to undertake this apology on 29 March, I said that in addition to the lack of financial support provided to unwed mothers there were also cases where they were subjected to grooming by those around them and pressure, including from state institutions. Moved from their community into the confines of a home, women were told that adoption was the right thing to do and the best thing for the child. Women had the details of their pregnancy and the future of their child concealed, while alternatives to adoption and information on potential financial assistance was often withheld. Relinquishing a child for adoption was often a traumatic process, and mothers have detailed their accounts to us and to the Senate inquiry, and the minister, the Premier and the Leader of the Opposition have detailed some of those accounts today.

In many cases consent was surrendered under duress, others were denied the right to revoke consent and some had the right to consent withheld altogether. There is no excuse that it is based on the understanding, the morality, of the time. There were people at the time who were saying that these practices were wrong. There is record of that. There was no Christian morality in what was going on there. I have had calls recently to be reminded of the Ten Commandments in relation to another matter, and I can tell you that commandment 4 is, ‘Honour thy father and thy mother.’ These children, these adoptees, were denied the opportunity to do that. Commandment 7 is, ‘Thou shall not steal.’ These children were stolen. There was no morality in this.

The value of an apology is important. It is a moment of healing, reconciliation and opportunity for the parliament to demonstrate to those who are hurt that we have respect for you and that you are vindicated—those who have felt hurt all these years. When we as individuals going about our business commit a wrong we apologise, and when an institution commits a wrong its representatives must apologise, and we do so today.

We follow in the steps of the first apology of this nature in Australia undertaken on 9 June 2009 by the Royal Brisbane and Women’s Hospital, the Western Australian parliament on 19 October 2010, a number of other non-government institutions and churches that have done so since then, the Senate inquiry reporting in February (and I look forward to further activity at a federal level), the support of the Liberal party room, the Greens, the Labor party room, the government and bipartisan support in this house.

It is a time for healing and reconciliation, and we applaud those who have had the courage to come forward and to contribute to this apology. I conclude by reflecting the words of the Premier earlier:

This South Australian parliament recognises that the lives of many members of the South Australian community have been adversely affected by adoption practices which have caused deep distress and hurt, especially for mothers and their sons and daughters, who are now adults.

We recognise that past adoption practices have profoundly affected the lives of not only these people but also fathers, grandparents, siblings, partners and other family members.

We accept with profound sorrow that many mothers did not give informed consent to the adoption of their children.

To those mothers who were denied the opportunity to love and care for their children, we are deeply sorry.

We recognise that practices of our past mean that there are some members of our community who remain disconnected from their families of origin.

To [the adoptees] who were denied the opportunity to be loved and cared for by their families of origin, we are deeply sorry.

To those people who were disbelieved for so long, we hear you now; we acknowledge your pain, and we offer you our unreserved and sincere regret and sorrow for those injustices.

To all those hurt, we say sorry.

Honourable members: Hear, hear!

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Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

http://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home’

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

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