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Category Archives: adoption

Crime and care

 

This was an appeal decision, which really arose from the Court in care proceedings making findings that sexual abuse allegations against a father were proven (and then making Care Orders and Placement Orders) and the criminal trial then going down the route that the allegations were concocted and the jury unanimously acquitting the father.

The father applied for a re-hearing of the care proceedings.  As part of that re-hearing, it was vital to see exactly what the Judge in the criminal proceedings had said as part of his summing up to the jury before their acquittal. That information was very slow in coming forward and the Judge in the care proceedings refused father’s application for an adjournment to get that evidence.

 

Thus resulting in the summary of this case being :-

Appeal against refusal of an application for an adjournment of an application made by the appellant father for a re-hearing of care proceedings. Appeal dismissed.   {via Family Lore}

John Bolch at Family Lore managed to compress the nub of the appeal into a very short space, with remarkable economy.

Re U (Children) 2015  http://www.bailii.org/ew/cases/EWCA/Civ/2015/334.html

 

[I have to say that I don’t entirely agree with the Court of Appeal on this one. I’m not saying that I would necessarily have overturned the original findings, but I would have wanted to see exactly what the Judge in the criminal Court directed the jury, and probably the transcripts of evidence in the criminal case before deciding whether this was important fresh evidence]

In the care proceedings, there had been a number of allegations including of physical abuse, but the allegation in question was of a sexual nature.  The parents case was that these allegations were false and had been put into the child’s mind by a community worker named Raj.

 

  1. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
  2. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
  3. The focus in both the care proceedings (in relation to ZU’s allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
  4. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj’s evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
  1. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as “utterly unconvincing witness” clearly “partial and biased”. He did not accept her evidence and believed it likely that she had been “put up to it by the father or someone on the father’s behalf”.
  2. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls’ evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.

The Judge in the care proceedings thus went on to make findings of fact that ZU had been sexually abused by the father.

There were, as I said earlier, other issues that went to threshold, including a finding that the children had been hit

 

The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

“Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children.”

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father’s instruction. The judge made the inevitable finding that the mother had failed to protect the children.

 

But, staying with ZU’s allegations of sexual abuse, the Judge in the care proceedings had concluded that the parents explanation that Raj had concocted these allegations and put them in ZU’s mind was not correct.

 

By the time the criminal proceedings took place, two months later, the mother, father, ZU and Raj all gave evidence and the father was acquitted of the sexual abuse allegations.

He then made an application for a re-hearing of the care proceedings, on the basis of what had happened during the criminal proceedings.

“5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of “not guilty” and the father was acquitted.”

Remember that the criminal court is applying a higher standard of proof   [What most people still think of as ‘beyond reasonable doubt’ but is actually now to convict the juror must be persuaded ‘so that they are sure’ in percentage terms probably high 80s, if not 90s]  rather than the civil standard of proof in care proceedings [more likely than not – i.e 50.01% or more]

 

But this seemed to be more than a Judge just indicating that it was impossible to be sure, and verging towards an indication that the evidence of Raj and ZU was such that it would be unsafe to rely on it due to the flaws in it.

When considering the father’s application for re-hearing then, the substance of what the criminal Judge had said was vital.

  1. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

    And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

  2. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant’s solicitors some weeks previously.

 

On 12th December then, the father asked for an adjourment to get this evidence. The Court refused the adjournment and went on to consider the father’s application for a re-hearing in the absence of that evidence.

  1. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

    The Refusal of the Adjournment

  2. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

    “[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors.”

  3. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

 

Of course, in a practical sense, the delay for the children still occurred, since the decision was appealed, and the appeal Court didn’t hear the case until mid March. It might have been a far less disruptive delay to have waited until mid January to actually get the transcript of the Judge’s summing up…

 

The Court of Appeal accepted that any decision made by the Judge hearing that application would be imperfect.

  1. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father’s application.
  2. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children’s future; strain which would necessarily impact on the family environment to the detriment of the children.
  3. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU’s case, she might have to give evidence again.
  4. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
  5. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be “imperfect”.

 

With that in mind, the Court of Appeal considered that there had been a proper balancing exercise about the pros and cons of the father’s application for an adjournment and the Judge was right to refuse it

  1. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father’s case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father’s case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
  2. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

 

[It is really hard for me to put out of my mind that the reason father’s case was prejudiced here was not due to any inaction on his part or those acting for him, but on the delays in the Court process of obtaining a transcript that was so vitally important. The Court of Appeal have remarked many times on how slow the transcription of judgments for appeals has been and how the system gets bogged down. Here, that transcript was not just an informative document but a piece of evidence that the father was deprived of making use of, because the system is so unfit for purpose. That leaves a very bad taste in my mouth]

 

Having lost the argument that the application for an adjournment should have been granted rather than refused, the father was inevitably going to lose the second part of his appeal that the re-hearing should have been ordered.

  1. Application for a rehearing
  2. By Ground 5 the father seeks to appeal the judge’s dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
  3. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

    …Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

  4. In considering the first stage the President said [33]

    ……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

  5. The judge explained that there was no evidence to support the father’s submission other than his own assertions about what had happened at the trial The judge’s decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father’s case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
  6. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
  7. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
  8. I would accordingly dismiss the father’s appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

 

I personally think that if the father had been able to obtain a transcript from the criminal trial showing that an experienced Judge had seen ZU and Raj crumble under forensic examination and shown themselves to be unreliable witnesses who had concocted this story and more importantly that ZU had accepted in her evidence that she HAD fabricated the allegations, that would have been enough to meet the test.

Of course, it might be that the transcript would, if obtained, fall substantially short of that. Perhaps father was over-stating it. Perhaps he was completely right. We will never know. It doesn’t seem that it even materialised for the Court of Appeal hearing.

Have the Courts here really upheld the father’s article 6 right to fair trial? Given that father was deprived of the key piece of evidence not because he was dilatory or hapless, but because the Court system for getting a vital transcript was so hopeless.

Well, they have upheld his Article 6 rights , because the Court of Appeal say so. But I haven’t read many Court of Appeal decisions that made me feel so squirmy and uncomfortable  (Cheshire West in Court of Appeal  was the last one I felt like this about)

Only just over the threshold

 

I am tending to think that there’s a repositioning of the threshold criteria going on at the moment. It is a little hard to call, since there’s always been the unspoken background that what constitutes threshold in Liverpool doesn’t necessarily be the same things that consitute threshold in Torquay. But it feels that Re A and Re J are a subtle raising of the bar.

When a bar is raised, it can be tricky to work out exactly where that bar now is. We know that on the facts of Re A, threshold was not made out, but we don’t know if it was miles short or inches short.

Which is why when the President decides a case and says that the threshold criteria was satisfied but only just, it gives us some potentially useful information.

 

Leeds City Council v M and others 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/27.html  is the follow-up to the President’s judgment on Female Genital Mutilation (you may remember, this was the case where that was alleged, and the President had to decide (a) if it had happened (no) (b) whether it could amount to threshold (yes) (c) Would it amount to risk of harm to a male child (no) and (d) if it had happened, would it by itself justify adoption (no)

 

http://suesspiciousminds.com/2015/01/14/fgm-an-important-authority/

The President’s first judgment pre-dated Re A, which is what makes me think that there’s a shift in thinking. The President here didn’t seem to be struggling with the idea that domestic violence, even if not of the most serious nature could amount to significant harm:-

 

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

The President had said in the first case that adoption, the LA’s plan, was not proportionate, and was seeking an alternative resolution. This case is that resolution.

In giving his final judgment, the President identified four key areas where the LA contended threshold was met:-

1. Mother’s mental health

2. Domestic violence

3. Neglect and physical abuse

4. Lack of cooperation / engagement

Remember, the President concluded that threshold WAS met, but only just.

I am prepared to accept, in the light of my findings, that threshold is established, though not by a very large margin.

So, looking at things in detail

 

1. Mother’s mental health

The psychiatrist, Dr T, made the diagnosis that mother had ‘schizo-affective disorder’, currently in remission, but a lifelong condition vulnerable to relapse caused by stress. Dr T said at least 12 months’ stability in M’s condition was essential if B and G were to be safe in her care and that the necessary period had not yet elapsed. If stability and compliance could not be maintained over that length of time, it would be “very risky” for them to be returned to her care

The Judge accepted Dr T’s evidence and opinion.

 

  • I accept that there has been improvement in M’s mental health. But Dr T’s evidence, which I accept, is clear, compelling and withstood all challenge. It would be irresponsible not to heed and give effect to it. In my judgment, M is not at present able to look after B and G.

[You might look at that and say that this in and of itself is sufficient to cross the threshold – there’s a factual matrix which allows the Court to establish that there is a risk of significant harm – remember that if a factual matrix is established, the risk itself does not have to be more likely than not, it is sufficient to be a risk which cannot sensibly be ignored, as decided by the House of Lords in H and R 1996. ]

 

2. Domestic violence

 

The mother had made allegations of domestic violence against the father, but later retracted them. The Court had heard evidence from mother and father.

My conclusion, having carefully considered the mass of material put to me and the helpfully detailed submissions from counsel, is that there was, as I have said, a greater degree of marital discord than either M or F was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety. It was, as Mr Ekaney submits, at the lower end of the scale. Beyond that it would not be right to go.

 

Remembering that the definition of ‘harm’ was expanded in the Children Act 1989  to include the words in bold  “harm” means ill-treatment or the impairment of health or development [including, for example, impairment suffered from seeing or hearing the ill-treatment of another];     – the words being added in the Adoption and Children Act 2002. So a child being exposed to domestic violence, or at risk of being so exposed can be considered to have suffered harm, or risk of such harm – the issue really being whether it is significant.  The President does not, in his judgment, specify whether his conclusion about domestic violence here amounted to significant harm or the risk thereof.  The best we can do is go back to this bit

“(i) The local authority is unable on the evidence to establish that G (as I shall refer to her) either has been or is at risk of being subjected to any form of female genital mutilation.

(ii) There was a greater degree of marital discord than either M or F (as I shall refer to them) was willing to admit to. There was also, I am satisfied, some physical violence on the part of F, though neither very frequent nor of the more serious variety.

(iii) Given all the facts as I find them, including but not limited to (i) and (ii) above, threshold is established.

 

 

and suggest that domestic violence was part of the factual matrix that led the President to conclude that threshold was crossed, though not by a very large margin.

 

3. Neglect and physical abuse

 

This is the section where you get to see the Re A dynamics play out. There are facts established to show what happened to the children

There were two very specific allegations of neglect, amongst more general complaints

in October 2013, G was taken to nursery with spare clothes that were damp, soiled and smelled of urine; much more significant, on 7 November 2013 M, it is said, abandoned G in an alleyway in the city centre, where she was found cold, wet and very distressed. 

[The mother accepted the abandonment. G was born in July 2011, remember]

 

There is no doubt that B and G experienced instability and inconsistency of care, brought about by M’s recurrent mental health difficulties and F’s limited ability to cope with them. There were the specific instances of neglect I have already referred to.  To the extent that there was marital discord between F and M, B and G were exposed to it. I think it is probable that on a few occasions B and G were exposed to mild chastisement – but nothing more serious.

 

But as Re A showed us, establishing a contested (or accepted fact) as being proven is only half of the story. The next stage is for the Local Authority to satisfy the Court that what happened caused the children harm.

In this case, the Guardian considered that the children did not present as having been damaged by their experiences

“Without exception these two children have been described in very positive ways; it is clear they are delightful and endearing children who make a good impression on anyone who meets them. It is also clear that the first impressions of these children did not signify children who had been exposed to neglect, or an abusive home environment. They appeared to have been protected from the worst excesses of the mother’s mental health challenges. They have experienced positive parenting.”

 

The President says

I entirely agree. The guardian’s analysis accords with everything I have read and heard.

What is important, however, is the fact that, as I have already found, none of this seems to have had any significant or prolonged impact on either B or G – so nothing they have been exposed to can have been that serious.

 

The President doesn’t say so explicitly (which is somewhat vexing for those of us who are trying to decipher the Delphic offerings), but I think that that final remark can be read to mean that he did not accept that the threshold was made out on the basis of the neglect aspects.

Frankly, I think abandoning a 2 1/2 year old child in an alleyway is significant harm, but it appears that I am wrong about that.

 

Firstly, this troubles me because that sort of thing also feeds into risk of future harm, and of course a child isn’t yet showing the ill-effects of future harm. This approach seems to ignore future harm entirely.

The other thing that concerns me about this approach is that I can forsee that we are ending up with a different threshold criteria for a resilient child, who is exposed to poor parenting but has inner qualities that allow them to cope, and a fragile child whose reaction to the same parenting is marked and plain to see.  And it also requires that the child is showing the effects of the harm that they have suffered in a very visible and measurable way – I know that the neuroscience is controversial, but there is at least some evidence to suggest that neglect has much longer repercussions than the immediate visible impact.

 

4. Lack of cooperation / engagement

 

Here the parents made concessions

 

 

  • M admits poor engagement with professionals due to her mental health problems.
  • F accepts that, prior to the children being taken into care, he failed to engage and co-operate with the local authority and that this led to him adopting what was understandably perceived as a controlling attitude towards M. This, I accept, was driven by the two factors to which Mr Ekaney drew attention. The first was F’s perplexity about the family situation, largely caused by his failure to recognise the nature and extent of and inability to understand M’s mental health difficulties. The other was F’s desire to protect his family and his fear, from his perspective well-founded fear, that B and G would be removed from their care. Since B and G were taken into care, F’s attitude has changed. There has been, as Mr Ekaney puts it, a high level of co-operation and engagement with the local authority, coupled with a high level of commitment to B and G. And, as I accept, this is not due to any compulsion; it reflects F’s growing realisation and acceptance of the underlying realities.
  • Given M’s and F’s concessions, which appropriately reflect the reality of what was going on, there is no need for me to make any further findings.

 

[Well, there is a slight need – again, I am assuming that this was not found to have amounted to significant harm or the risk of significant harm, but it is rather difficult to say for certain, because the judgment doesn’t outline it.  To be honest, I do not envy the Local Authority advocate who had to draw up a final settled threshold based on this judgment. I THINK that the totality of the judgment suggests that findings of fact were made across points 1-4, but only those in points 1 and 2 amounted also to findings of significant harm. But I would not race to Paddy Power with bundles* of fivers to back that conclusion. My actual bet would be that over the next year, the number of cases where threshold is agreed rather than fought out will dramatically reduce. And as we can’t have fact finding hearings any more, thresholds will be fought out at final hearings. How’s that going to work out for 26 weeks, I wonder?]

 

 

The President ruled that whilst mother could not care for the children now or within their timescales, the father could and should be given that opportunity, and the children would be placed with him under Supervision Orders.

So there we have it, on these facts, the case crossed the threshold, but not by a very large margin.

 

 

*IF I did happen to be going to the bookies with bundles of fivers, I would ensure that in accordance with Practice Direction 27 there were (a) no more than 350 of them (b) They were A4 sized  and (c) that they were printed only on one side. Which explains why Paddy Power doesn’t want me going in there any more.

 

Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

Adoption of an adult

 

It is a peculiar wrinkle of the Adoption and Children Act 2002 that an adoption order can be made on a 19 year old PROVIDED that the application was lodged before that person’s 18th birthday.  It does not happen very often, but it comes about once in a while.

 

Mostyn J was asked to consider such an application in FAS v Bradford MDC 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/622.html

 

and it takes us into interesting directions.

This was an application by a woman living in Britain to adopt her cousin once removed MW, who is now legally an adult, being aged between 18 and 19. The application was made before his 18th birthday. The major difference between the adoption order being made or not being made would be that MW would be legally able to enter Britain and remain here.

The Court had to consider , when dealing with this application the welfare paramountcy principle.

Section 1(2):

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

 

This is an important issue, because the ‘throughout his life’ is only in the Adoption and Children Act 2002, and is different to the wording of the Children Act 1989 where it is ‘throughout his childhood’ and also it is a change from the ‘throughout his childhood’ wording in the 1976 Adoption Act.

Obviously, if the Court is dealing with a person who is now 18, then the welfare throughout his childhood is no longer an issue, since he is no longer a child. But welfare throughout his life IS an issue.

Mostyn J was interested in why this change of wording had come about, and investigated it doggedly. He does not really get to the bottom of it, and if he was unable to, I suggest that nobody else will.

This is as close as he gets:-

what welfare considerations Parliament was addressing when it added the words “throughout his life” to the traditional welfare prescription? Section 1 of the Children Act 1989 provides that “the child’s welfare shall be the court’s paramount consideration.” Implicitly this captures only welfare matters arising during childhood. Had it meant to capture benefits arising in adulthood it would no doubt have said so, or have been amended to say so, when ACA was passed. The Consultation Paper “Adoption: a new approach” (December 2000: Cm 5017) does not shed any light on the issue. It merely states at para 4.14 that:

    1. “In 2001, the Government will legislate to overhaul and modernise the legal framework for adoption, and in particular … [to] align the Adoption Act 1976 with the Children Act 1989, to make the needs of children paramount in making decisions about their future.
    2. 34. This is, in fact, what did not happen, as the new adoption welfare test is not aligned with that in the Children Act 1989. I have not received any submissions from counsel about statements in Parliament during the passage of the legislation deriving from Hansard, and I have not undertaken any independent research in this regard.
  1. A significant clue is however found in section 1(4)(c) of ACA. This provides that the court must have regard to the likely effect on the child (throughout his life) of having ceased to be a member of the original family and having become an adopted person. This suggests that the court must look ahead and consider carefully the disbenefits that might arise later in life as a result of being adopted. No doubt Parliament had in mind the extraordinary and tragic case of Re B (Adoption Order: Jurisdiction to Set Aside) [1995] EWCA Civ 48, [1995] Fam 239. The problem there was described succinctly by Simon Brown LJ:

    “It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim’s son with an Orthodox Jewish couple. This appellant was brought up believing himself a Jew, against a background of deep prejudice and hostility between Jews and Arabs, discovering only in adult life that ethnically he belongs to the opposing group.”

    The application by the adopted child, made when he was 36, to set aside the adoption order was refused. It could only be set aside in wholly exceptional circumstances and the facts there, though extreme, were not in that class.

 

Why does this matter?  Well, because there’s existing authority from the House of Lords in 1999  (dealing with the ‘throughout his childhood’ test that existed then) saying that matters that are consequential to the adoption such as inheritance rights or rights of abode are not things that can properly be considered as part of the ‘paramountcy’ principle, and that if the benefit is purely to allow a right of residence as a matter of public policy that is better left to the Secretary of State.

 

  1. I draw attention to the terms of section 1(2) which refers to the child’s welfare “throughout his life”. This is to be distinguished from section 6 of the Adoption Act 1976 (and its predecessors) which referred to the need to promote and safeguard the welfare of the child “throughout his childhood”.
  2. Section 6 of the 1976 Act was the key provision in play in the decision of the House of Lords of In re B (A Minor) (Adoption Order: Nationality) [1999] 2 AC 136. In that case in 1995 a child, T, then aged 14, and her mother, both Jamaican citizens, visited the mother’s parents in the United Kingdom and were given leave to enter for six months. During that period the child went to school in England. When the mother returned to Jamaica the child remained with her grandparents in order to continue attending school. The Home Secretary refused to extend the child’s leave to remain in the United Kingdom. The grandparents, who were British citizens, applied with the mother’s consent for an adoption order in respect of the child. The Home Secretary intervened to oppose the application on the ground that adoption was being used as a means of acquiring right of abode in the United Kingdom.
  3. Lord Hoffmann gave the sole speech of substance allowing the grandparents’ appeal from the decision of the Court of Appeal refusing an adoption order. At 141G to 142A he set out two propositions as follows:

    “The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

    And at 141E-G he concluded:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of section 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow T. to remain in this country for the two years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given T. any benefits during her childhood which she would not have been able to enjoy anyway.”

Does Lord Hoffman’s second proposition from Re B – that the Court will rarely make an adoption order that confers no benefits on a child during their childhood but has benefits which bear fruit in later life, stand, given that the paramountcy principle is now ‘throughout their life’ rather than ‘throughout their childhood’?

It is a damn good point.

Mostyn J felt that Lord Hoffman’s proposition was important – the Secretary of State for the Home Office had powers about immigration and who could enter the country and remain here – a family Court should be reluctant to take that power for themselves and there must be a concern that adoption could be used as a loophole to circumvent this, if the only tangible benefit for the person being adopted would be their right to live in the UK.

 

  1. In his recent lecture to the Denning Society on 13 November 2014 entitled “Adoption: Complexities Beyond the Law” Lord Wilson of Culworth with his customary penetration and lucidity identified a number of other searing problems encountered in adulthood which derive from an adoption. I would detract from the integrity of the piece were I to quote snippets from it. Lord Wilson ended with these telling words:

    “I am a passionate believer in the value of adoption in appropriate circumstances. Nevertheless I fear that, in making those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for a child’s upbringing. Sir James Munby, the President of the Division, said only weeks ago that adoption has the most profound personal, emotional, psychological, social and perhaps also cultural and religious consequences. I totally agree. The order is an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives. As a result of the society’s invitation to me to speak to it this evening, I have belatedly been led to reflect on these complexities beyond the law.”

  2. I am firmly of the view that when Parliament enacted the enhanced welfare test in section 1(2) ACA it was thinking about the long-term emotional repercussions of an adoption order. I am equally firmly of the view that it could not possibly have intended to have abrogated Lord Hoffmann’s second proposition. It would have been extraordinary had it intended to do so. The control of immigration has been a driving force of all governments, of whichever political stripe, for decades. If Lord Hoffmann’s second proposition has gone, and the benefit of citizenship solely or mainly taking effect in adulthood is, of itself, a welfare reason to make an adoption order then one can see that a large loophole will have been opened up in an area which is extremely tightly regulated.

 

Mostyn J looked at the three reported authorities dealing with a similar issue where Lord Hoffman’s speech had been dealt with post the 2002 Adoption and Children Act, but did not find that they resolved the point.  In all three of the reported cases, the Court went on to make the adoption order, but none specifically addressed whether Lord Hoffman’s second principle applied (focussing rather on his first principle that the Court should not allow an adoption where the application is made in bad faith)

 

  1. I have concluded, for the reasons I have given, that Lord Hoffmann’s second proposition remains fully operative notwithstanding the advent of the enhanced welfare test in sections 1(2) and 1(4) ACA. I would re-express that proposition, in the light of ACA, as follows:

    “The court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. This is not inconsistent with section 1(2) of ACA. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  2. In this case I can see no benefits at all for MW deriving from an adoption order other than citizenship. If he were entitled to stay here I am sure that this application would not have been made. He would live with FAS and his second cousins. His life would be identical whether or not he was bestowed, as an adult, with the formal status of adoption.

 

Mostyn J says explicitly that he has done so on the basis of his interpretation that Lord Hoffman’s second proposition still applies, and that if it did not, he would have made the adoption order.

Finally, I should state that if I am wrong in my opinion that Lord Hoffmann’s second proposition remains operative, and that it is in fact a dead letter, then I would have concluded that the inestimable life-long benefit of citizenship to MW would have driven me to make an adoption order. If that is the law then I expect that the government would want to look urgently at making an amendment to ACA to restore that proposition to life.

 

 

 

Oedipus Wrecks

I have written about some strange cases involving the Human Fertilisation and Embryology Act, but this one might be the strangest.

 

Re B v C (Surrogacy : Adoption) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/17.html

 

[Read the piece first, it makes more sense that way – don’t read the judgment till you have read the piece]

 

In this case B (let’s call him Bob, because it makes following the story a bit easier) decides that he wants to have a baby. Bob doesn’t have a partner, he is a single man in his twenties, but he wants to have a baby.

 

Bob decides to get a surrogate mother to have his baby. This surrogate mother is C (let’s call her Carol – not her real name).

 

Carol is married to D (let’s call him Derek). Derek consents to this procedure.

 

The baby is born. The baby is A (let’s call him Alfie)

 

The baby is the biological child of Bob and Carol. But the legal parents are Carol and Derek. Bob doesn’t have PR. Bob is not the child’s legal father, Derek is.   (Because he is married to Carol and consented to the pregnancy – if he wasn’t married or didn’t consent, Bob would have been the legal father)

 

So Bob makes his application to Court. Now, as a single parent, a parental order is not open to him (which is the usual order sought post surrogacy)

 

Under section 54 of the HFEA 2008 in situations where a child has been carried by another woman a parental order can be made by the court, this provides for a child to be treated in law as the child of the applicants. However, all the requirements under section 54 have to be met, one of which is that there have to be two applicants who are either married, civil partners or are ‘two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.’ (Section 54 (2)). A single person is therefore unable to apply for a parental order.

 

Bob has to instead, as a single carer, apply for an adoption order. As he isn’t the child’s legal father, he is not prohibited from adopting his own child (because legally it isn’t his child because of Derek’s marriage to Carol and consent to the process)

 

 

With me so far?

 

Here is the tricky part.

 

How should I say this? Remember Carol, who had the baby on Bob’s behalf? Well, on Sunday 15th March, Bob will be sending Carol a card. Not just on Alfie’s behalf, as many dads do. But on his own behalf.

 

Carol is Bob’s mum. Derek is Bob’s stepdad.

 

Remember at the moment that the biological parents of Alfie are Bob and Carol * But the legal ones are Carol and Derek.
[*A commentator on Twitter has found in the judgment the reference to there being an egg-donor that I couldn’t find in the judgment. So genetically Carol is not Alfie’s mother]

Alfie is biologically Bob’s son and also his brother. But legally, Alfie is Bob’s brother.

 

Mrs Justice Theis must have called on all of her powers of understatement to summarise this arrangement as :-

 

This, admittedly, unusual arrangement was entered into by the parties after careful consideration, following each having individual counselling and with all the treatment being undertaken by a fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA) who are required under the HFEA code to consider the welfare of the child before embarking on any treatment.

 

 

Is this legal? It feels like it shouldn’t be legal? Is it legal? I agree with you, it doesn’t feel like you should be able to have a baby with your own mother, even if it is artificial insemination. That feels like a baby who is going to spend a lifetime in therapy.

 

Always worth examining your own thoughts when you have a strong visceral reaction to something. It is pretty common in surrogacy for a woman to ask her sister to have the baby for her; if Bob was Betty and Carol was Betty’s sister that wouldn’t even raise an eyebrow. Why is it that surrogacy between a mother and son feels… somehow a bit “Take a Break” ?

 

[I suppose on this basis, a female Bob – let’s call her Betty, could decide to have a baby with artificial insemination with her dad Derek providing the raw material. Let’s call that baby Electra and be done with it. I’d be interested to know which scenario makes you feel less comfortable, or even whether you have no adverse thoughts about either]

 

It is legal and the people involved in this, from what I read of the judgment, are all perfectly normal, sensible and decent people who used a legal solution to solve Bob’s problem that he wanted to be a father and didn’t want to wait till he found a partner. (That again is something that if Bob was Betty, nobody would bat an eyelid about)

 

Unusually, and where the legal aspect of this case is noteworthy, is that it is only the fact that Bob and Carol are related that stops the agreement they reached about Bob adopting Alfie being a criminal offence.

 

Underlining here shows all the offences that would have been committed by Carol agreeing to have a baby for Bob to adopt (if they weren’t mother and son)

 

The ACA 2002 provides restrictions on arranging adoptions in section 92, the relevant part provides

 

 

(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

 

(2) The steps are—

 

 

(a) asking a person other than an adoption agency to provide a child for adoption,

(b) asking a person other than an adoption agency to provide prospective adopters for a child,

(c) offering to find a child for adoption,

(d) offering a child for adoption to a person other than an adoption agency,

(e) handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person,

(f) receiving a child handed over to him in contravention of paragraph (e),

(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).

 

 

 

(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.

(4) The condition is that—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is the partner of a parent of the child.

 

Breach of s 92 is a criminal offence under s 93 ACA 2002.

 

 

We’ve established that the actions of Bob and Carol would amount to a criminal offence under s92.

 

There are two circumstances in which the offence doesn’t apply, from s92(4)

 

Either Bob is a parent, relative or guardian of the child

 

OR he is Carol’s partner (which thankfully he isn’t) or Derek’s partner (which he isn’t)

 

He isn’t, in law a parent or Guardian of Alfie, but he might be a relative.

 

And the relative bit is defined in s144 ACA “relative”, in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage [or civil partnership]

 

 

So the offences in s92 don’t apply (I actually think that offence s92(a) which isn’t covered by the s92(4) defence still applies, but it does seem a bit weird if ‘asking someone if they will have a child that you can adopt’ is a crime whereas ‘negotiating with them with a view to achieving that’ isn’t. So I can’t see anyone in Bob’s position being prosecuted for that)

 

What this case shows is that if you are a single person, surrogacy is something of a legal minefield. You can’t apply for a Parental Order. And if you plan instead to go the adoption route, then you risk falling foul of the criminal offences – since if you aren’t directly related to the child taking any step to arrange or agree it or handing over the child is a criminal offence.

 

The placement would also be a Private Fostering Placement pending the court making its decision (unless like Bob, you are related to the child), meaning that social workers would need to be involved.

 

  1. By virtue of the provisions of the HFEA 2008 set out above A and B have the same parents and, therefore, B is the legal brother of A. This means that in the unusual circumstances of this case, B met the conditions of s92 (4) (a) ACA 2002 with the result that when C and D placed A for adoption with B they were acting lawfully.

 

 

  1. The parties have also drawn my attention to the fact that, were it not for the highly unusual fact that B is a relative of A, when C and D placed A into B’s care, the placement would have fallen within the definition of a private fostering arrangement under the Children (Private Arrangements for Fostering) Regulations 2005 (SI 2005/1533).

 

 

  1. These regulations impose an obligation on both the legal parents of a child, as well as the proposed carer, to notify the appropriate local authority of the intention to care for a child under a private fostering arrangement. The obligation in these regulations arises of out the Secretary of State’s power to make regulations under paragraph 7 of Schedule 8 of the Children Act 1989 (CA 1989), which in turn supplements the provisions in s.66 of the CA 1989. Breach of the provisions of s.66 CA 1989 is an offence under s.70 CA 1989. It is of note that when a child born as a result of a surrogacy agreement, is placed in the care of intended parents who intend to apply for a parental order, the placement is not treated as a private fostering arrangement because of the effect of The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 Sch 4 para 12).

 

 

  1. What this case highlights, is that but for the close familial relationship between B and C, their actions would have breached these important statutory provisions and potentially left them liable to a criminal prosecution under both s.93 ACA 2002 and s.70 CA 1989.

 

 

  1. It is therefore imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice as to how to proceed as adoption is the only means to ensure that they are the only legal parents of their child. The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child.

 

 

The wording of s92 opens the door to the possibility that a single carer could do all of this if the High Court had granted permission in advance. I can’t think for the life of me what application you’d make (before the birth of the child or discussion about whether a stranger would have a baby for you to adopt had happened) but on the wording of s92, it seems like the High Court can by giving its blessing stop those actions being a crime.

 

 

The adoption order was made (and despite my own personal feelings of disquiet / ickiness about the perfectly legal arrangements, it is worth noting that the professional and independent assessments about everyone were clear that Bob would be a great carer for Alfie)

 

What is apparent from the reports is that the parties thought carefully about this arrangement, pausing, reflecting and seeking advice at each stage. In my judgment a critical feature of this case are the obviously close relationships within this family; it is an arrangement that was entered into not only with the support of the parties to this application, but, importantly, also the wider family. The strength of these familial relationships, and the consequent support they provide now and in the future, will ensure A’s lifelong welfare needs are met. An adoption order will provide the legal security to A’s relationship with B, which will undoubtedly meet A’s long term welfare needs.

 

 

Therefore, B’s application will be granted and an adoption order made.

 

 

All the very best for Bob and Alfie (not their real names) in the future.

 

If you do have a client call into your office to discuss with you their plans to have a baby with their own mother, then (a) you now know what to do and (b) if you can maintain your face as an impassive mask then I am never playing poker with you.

 

 

 

 

Flawed placement order application

 

When you call a case  RE EF (flawed Placement Order application) 2015, you are laying down a marker that this is going to be a judgment that makes criticisms. And so it does.

 

In fact when you read it, had the Judge designated this case as Re EF (Local Authority screw everything up, badly) 2015, that would not cause anyone in the Trades Description Act enforcement department to be concerned.

 

This is a judgment from a Circuit Judge, which means that it is not binding, but lessons can still be drawn from it. It was delivered by His Honour Judge Wildblood QC (who readers may recall fixed the tangle on banning a UKIP parliamentary candidate from allowing his younger children to participate in any political activity)

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B21.html

 

If you are umming-and-ahing about whether to read on, let me give you this titbit.

For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.

 

Still with me? Yes, I thought so.

 

I can’t really better how the Judge opens the case, so I will just quote it.   [When a Judge is kicking your ass and being kind about it, that actually feels worse than being roasted by an angry Judge – just like when your parent tries the “I’m not cross with you, I’m disappointed” is astonishingly effective – at least the first time round]

 

1. Foreword – Of course many cases reveal a few points of bad practice. However it is very rare that so many such points should be gathered into one case. It has taken two years and five months for these proceedings to be resolved. The case was listed in front of me (even though I had had no previous dealings with it save for a short procedural directions hearing 18 months ago) because there were such difficulties with it that it was thought necessary for it to come before me as the Designated Family Judge. I can see why.

2. This is an application for a placement order in relation to a little girl who is 4½ years old and who is already subject to a care order. It is a case that reveals multiple failures. The principal failures have been those of the Local Authority but there have also been failures within the court led process and by those who represent the parties. The delay speaks for itself but, in this judgment, I will set out what has happened. Despite what is said in Re W [2014] EWFC 22 orders of the court have been ignored. In one instance the Local Authority chose to ignore an order of the court (i.e. it declined to carry out an assessment of the father despite having been ordered to do so). In another instance the Local Authority failed to do what it had agreed to do (i.e. issue a placement application within a timescale agreed on the face of an order – by 30th October 2013- choosing to leave it for another four months before the application was issued on 18th February 2014). There has been sequential presentation of applications, as to which there are now the authorities of Surrey County Council v S [2014] EWCA Civ and Re R [2014] EWCA Civ 1625 [para 20]; here a care order was made in October 2013 with a view to the child being placed for adoption and, seventeen months on, I am hearing the placement application. This is the fifth listed hearing of this application for a placement order with each adjournment being necessitated by the inadequacy of the evidence that the Local Authority has provided. The analysis of options is inadequate (and does not analysis to any sufficient degree the benefit to the child of maintaining contact with her natural family). The professional assessments do not weigh up adequately the pros and cons of the competing options for this child (and the experts both gave evidence about the negatives of the father’s position without being asked to consider the negatives of adoption, such as the loss of family contact). The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court). The authority has had permission to investigate available foster and adoptive carers since September 2013; it has not investigated long term fostering as an option at all (despite saying that it would on many occasions – see e.g. page 38 of the transcript of the evidence of the social worker Ms Morley) and despite its apparent searches has had one expression of interest from a couple who know nothing about the specific details of the child. There has been no judicial continuity.

3. I realise that the Local Authority management will be as deeply disappointed as I am that a case comes before a court in this area in this condition. Criticism is often far from helpful and I would much prefer to work with authorities to improve matters rather than deliver criticisms from the bench. However, if I make a placement order I cannot attach conditions to it; as examined in helpful closing speeches, the power to attach contact provisions to a placement order under section 26 of the Adoption and Children Act 2002 bears a large number of practical difficulties (e.g. contact until when?). As Ms Rowsell said in her realistic and helpful closing speech – the Local Authority asks you to have confidence that it will operate appropriately under a placement order but accepts that the past means that there is little reason for it to do so. For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.

 

Although clearly the bulk of the faults here have been with the Local Authority, the Judge recognises that the lack of judicial continuity and control has been a factor as well.  It was wrong to have made the Care Order in the first place when the care plan was for adoption and there was no Placement Order application, it was wrong to have tolerated that drift, it was wrong to have allowed the timetable to get so out of hand.

 

Again, I will pick out one devastating line

 

The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court).

 

Can I resist the urge here to make a sarcastic aside about how that is standard practice for some (not all) Guardians?  No, it appears that like Oscar Wilde I can resist everything except temptation.

 

 

This next bit is music to my ears – it something that particularly vexes me and I am pleased to see a Judge dealing with it. It is the issue of getting to a final hearing without it being plain what orders each party invites the Court to make.  It is not that helpful to just know that X opposes Y, what you need to know is what order does X propose instead?

The only application before the court is that of the Local Authority for a placement order. There are no actual applications by either of the parents. On the scale of things involved in this case, I advance this point as one of mild criticism only and primarily for the purposes of clarifying what I am dealing with. But there should either have been applications setting out the orders sought or at least a record on the face of orders as to what applications are being pursued. The nearest that one gets is to look at the order at B128 that states that ‘the father wishes EF to be placed with him. The mother wishes for EF to be placed with her. The paternal grandmother wishes for EF to be placed with the father but if not with him then with herself’. On behalf the father I was told that he seeks a child arrangements order. I hope that it is not just legal pedantry to say that the nature of the orders sought should be identified not just for the purposes of clarity and definition but also because some applications involve different procedural requirements – for instance I had no idea whether the paternal grandmother might be seeking a special guardianship order in default of placement with the father. Of course no judge wants to see money and trees wasted in making unnecessary paper applications and it is often acceptable to record that parties are deemed to have applied for orders. But there must be some attempt at formality in establishing who is seeking what orders.

 

On a factual basis, the Gordian knot in this case seems to be that the Placement Order / adoption route was only the plan for this girl, who was 4 1/2 by the time of this hearing, and that her older siblings would be placed elsewhere. A plan of adoption would not only sever her relationship with her parents, but with those siblings. There might be circumstances in which that was still in the child’s best interests, but it is a very important aspect to be balanced in reaching that decision – the Court would need to know why an alternative option (like placing with father or long-term foster carer) which would not have the detriment of ending the sibling relationship would not be right for this particular child. And that never really got answered to the Court’s satisfaction.

 

For some reason the two experts instructed in the case weren’t asked to address this issue in their reports, and thus didn’t. And the social worker didn’t address the sibling relationship and merits of contact in  final evidence.

As it is the attempt to weigh up the competing options within the paperwork has to be taken from Mr Gray’s final statement. There are any number of difficulties with that document. Firstly, there has been no Local Authority assessment of the importance of contact between the siblings; the arrangements for this have largely been left to the three sets of foster carers. Secondly, the only assessment of the father (including three contact sessions) that Mr Gray wrote was the positive viability assessment; the quality of contact with the father and the importance of his role are not analysed when considering the options. Thirdly, the difficulties in finding adopters was not considered (the Local Authority has already had 17 months to do this). Fourthly, the fact that the Local Authority has not looked for foster carers at all is not mentioned

 

In a case like this, the search for foster carers would be a vital component. If you search and can’t find any, it is an important piece of evidence about the likelihood of being able to find one in the future. If you find some, then you have provided the Court with concrete options to choose between. You can’t really sidestep the issue by not even looking.

Especially when your care plan six months ago when the Care Order had been made was to triple track and look for adoptive placements, foster placements and assess dad.  Having done none of those things, it wasn’t really even a single track.  Having said they would in effect build a tricycle, the Local Authority turned up for this final hearing with a care plan where the wheels had come off completely.

The care plan states that the Local Authority would plan to search exclusively for an adoptive placement for six months following the making of a placement order. That amounts to a departure from what was being said in September and October 2013 where the case was to be twin tracked between fostering and adoption and permission was given for this to occur. Further, the Local Authority was again given permission to seek adoptive and long term fostering placements in September 2014 (i.e. six months ago) with the intention that it would pursue a triple track analysis – adoption, fostering and placement with father. It did not pursue fostering at all, failed to assess the father properly despite being ordered to do so and can offer one tentative enquiry about adoption from a couple who expressed interest ‘before Christmas’ and have not been investigated further.

 

And what of the future? And sibling contact? What were the Local Authorities proposals?

19. If an adoptive placement is not found in six months the Local Authority says that it would give further consideration to long-term foster care. In six months time EF will be five and in her second year of school education (she is just ‘rising five’ for this school year – C10). Thus her start at school in September 2014 took place from interim foster care 11 months after the care order was made and seven months after the placement application was made.

20. The care plan is non-specific about contact between the three siblings; at C179 the social worker says: ‘direct contact would be promoted [between the three siblings] if this was assessed as being in EF’s best interests and risks associated with their ongoing contacts with the wider birth family could be mitigated. Adopters open to promotion of direct contact would be recruited by the agency’. The guardian said this about inter sibling contact in her oral evidence: ‘The contact between EF and one of her brothers has included an overnight stay. There has been inter sibling contact three times a year with all three children together but there is also separate monthly contact between EF and one of the her brothers and less frequent contact between EF and her other brother. Ideally, if EF is placed for adoption, an adopter would have to accept inter sibling contact although this will not be easy because the parents will continue to have contact with the boys and adopters might find that difficult’. Having considered matters overnight, and after a period of adjournment for reflection, the guardian through her solicitor and in her presence said that one could not have any confidence that the Local Authority would deal with this issue of inter sibling contact appropriately and there was a very risk that it would not press for or find adopters who would tolerate inter sibling contact. Thus there was a very real risk that a placement order would result in this child losing all contact with all of her family members.

21. The care plan also proposes indirect (i.e. written) contact between the children twice a year (which is not easy to envisage given the ages of the children) as well as cards at birthdays and Christmas. As to the parents, maternal grandmother and paternal grandparents the care plan suggests that they should have indirect contact only, once a year and Mr Gray, the social worker suggests at C179 that ‘this enables the continued development of [EF]’s identity and comprehension of her birth family story within safe parameters’. When considering the proposals for contact nothing is said about the quality of the father’s contact to date. It was agreed in closing speeches (on my enquiry) that the contact between this father and this child has been ‘good and loving’. The contact notes are at enclosure F.

Remember that one of the wheels on the Local Authority’s care plan (on which the Court made a final Care Order) was an assessment of the father? What happened with that?

  There was also a preliminary parenting assessment of the father at C108 by the social worker, Mr Gray, dated 22nd October 2014. It suggested that further in depth assessment of the father was necessitated and that this would take two months to complete [C111]. The preliminary report was positive in its assessment of the father and suggested at C110 that a good attachment had been observed between the father and EF (a suggestion that Dr Edwards doubts to be correct – E37); however, at C111 Mr Gray said that there were a number of matters not covered by the assessment such as home life, providing EF with appropriate clothing, getting her to and from school, managing her behaviour and providing her with a stable environment. What is more, the person writing the assessment is Mr Gray, who has never met the father except when attending court hearings (again I say more about this later).

41. Notwithstanding the positive nature of Mr Gray’s initial report, there was then a statement filed on 6th November 2014 by Mr Tyrrell of the Local Authority child permanence team (C131); in it Mr Tyrrell stated that the Local Authority did not intend to assess the father because the ‘timescales for EF would not allow them to do so’ [C135]. The order of the Recorder of 3rd September 2014 states at paragraph 14: ‘The Local Authority shall carry out a parenting assessment of father and this shall be filed and served by 17th October 2014’. The Local Authority accepts on the face of Mr Tyrrell’s statement that it did not carry out a full assessment in accordance with that order [C135]. That is inexcusable. The order to carry out a parenting assessment means that the Local Authority should carry out a proper parenting assessment; on the very face of Mr Gray’s statement his work was not a parenting assessment, as he himself accepted in evidence.

42. The Local Authority’s decision not to assess the father properly was deliberate and considered; since that decision was in direct contravention of a court order I do not see how I can describe it other than as contemptuous. Nor do I accept that an assessment of the father would have taken two months; it would have taken as long as those involved chose.

 

So there was a positive viability assessment of father, the Court ordered a parenting assessment of him be filed and the Local Authority decided not to do it.

I have certain withering views of my own about how helpful it is for the President to cascade judgments suggesting that parties who are four hours later in filing a document should obtain a Court order in advance extending the deadline, but this is a kettle containing entirely different fish altogether.

We have all been late, we probably (despite our sincere desire for the contrary) will be late in the future. I HATE being late, it makes me feel sick and stops me sleeping. But it does happen.  But if you get ordered to file an assessment of a father, you file something, even if it is late. You don’t just decide not to do it. For a case where your plan is adoption.

 

In his oral evidence Mr Gray said this. When he carried out his parenting assessment he did not see any of the case papers from the care proceedings. He did not meet the father when preparing it (and has never met him even now despite having been the social worker for EF since the end of October 2014 and being called as the only witness for the Local Authority at this hearing). Is it acceptable for a social worker to prepare care plans and file Local Authority evidence, including evidence of options and services, without ever meeting the one member of the family who seeks to care for the child concerned? One can never say ‘never’ to that question but, on the facts of this case, it was obviously inappropriate for Mr Gray to come to give evidence without ever meeting this father.

44. Mr Gray said that, since his involvement, the Local Authority has discounted the parents and so it was not thought appropriate for him to meet with them. He was not aware that the court had adjourned a final hearing because of the inadequacy of the Local Authority evidence particularly in relation to the assessment of the father. He accepted that his assessment was not a complete parenting assessment and said that he told the legal department that there needed to be a full assessment of the father.

45. There is no analysis of the contact that has taken place between the father and this child save for the three contact visits that Mr Gray did not himself observe; Ms Griffiths, who did observe them, said this at C110: ‘in general, the nature of all three observations does suggest a good attachment between EF and her father. Indeed, there was one poignant moment shared by them both when they discussed how much they missed each other’.

Poor Mr Gray gets somewhat hung out to dry here – he picked up the case after the Care Order was made and believed that what he was inheriting was a completed piece of work where all that really needed to be done was the paperwork to do a Placement Order application. That was far from the case, and there appears to have been a serious breakdown in communication as to what the new social worker would need to do in this case – the triple track of exploring potential adopters, exploring foster care and assessing dad (all against the backdrop of what each of these options might mean for EF and her siblings)

Remember all of the recent judicial strictures about keeping the bundles to 350 pages? Bear this in mind

 None of the important documentation from the care proceedings was in the court bundle and so I called for the court file to be retrieved from the basement of the court office. It is from that file that I found the order of the District Judge of 1st October 2013. I also found the care plan that was made on 20th September 2013 which states that ‘a search to identify a suitable adoptive placement for her will be made; alongside this a long term foster placement will be sought as a fall back position’. No long term placements have been identified. The care plan states that the child ‘is due to be considered by the agency’s decision maker on 16/10/13’ (i.e. 15 days after the final care hearing – why? – the care plan proposed adoption).

 

There were even problems with the threshold – the basis on which the original Care Order had been made.

 

 

 

 

 51. There is no record within the bundle about the terms in which the threshold criteria were fulfilled for the purposes of the making of the care order. Indeed, on my exploration of the two large court files there was no copy of a threshold document on file. I had to ask for it to be produced and it came into being on the second day of this hearing.

52. Further, the District Judge said this in his October 2013 judgment: ‘I incorporate into this judgment by reference two important documents, firstly the agreed final threshold document that set out the agreed facts as at the time that the application was brought and, secondly, the findings of fact that I have already made on the previous occasion’. When I asked ‘what findings were made and on what previous occasion’, there was some confusion because, within the court file, there was a schedule of findings that the Local Authority was seeking with responses from the mother. I asked: ‘Had there been a fact finding hearing?’ It appears that there was not. The District Judge did deliver a judgment in September and stated that his October judgment was a continuation of that earlier judgment. I do not have a transcript of what he said in September.

53. It is very unfortunate that I do not have a transcript of what the District Judge said in September because it was in the September that the Judge reached the conclusions that I have already set out above. Plainly it is important for me to understand the welfare basis for that. I would have thought that the Local Authority would have wanted such a transcript also so that it could guide their work. Emphasising the importance of a judgment is not judicial pique or self importance. A judgment is given after everyone has had an opportunity to have their say and it represents the rule of law in practice. If judgments and orders are just ignored, as they have been here, what follows? Further, the judgment allows people to distinguish between what is established fact and what is no more than allegation. It also explains why people are being ordered to do things.

54. The threshold document relates to the time when proceedings were started – that is 2012. Therefore it does not record the issues that were contemporary at the time of the care order and led to the conclusion that only care with a view to adoption would do. Further the document suffered from many of the deficiencies identified recently by the President in Re A (a child) [2015] EWFC 11 (the Darlington case); for instance: ‘there are concerns as to the rough handling of the children ….there are concerns as to the general care of the children’. The threshold criteria were fulfilled on the basis of the violence between the parents, the neglect of the children, the parents lack of engagement with an assessment, the social hostility towards the parents, the parents misuse of drink and drugs and the parents’ failure to seek medical advice for the children after they suffered ‘unexplained injuries’.

If you are doing a quick head count – in this case the bundle didn’t have the right documents in it, the threshold was both wishy washy and hadn’t actually got put in the bundle, the social worker hadn’t met the father he was assessing, the experts hadn’t been asked to assess the most important thing, a triple track care plan turned into a ‘what’s a track?’ care plan, the Local Authority had been ordered to file an application for a Placement Order and filed it four months late, and the Court had granted a Care Order with a plan that looked like adoption without actually having a Placement Order application to consider (and, it turns out, without the Local Authority having Agency Decision Maker approval to actually do that)

In this case, the Local Authority were not just flirting with disaster, they had bought disaster dinner and had a toothbrush in their bag hoping that disaster would ask them to stay over.

The conclusion

135. Conclusion – I do not consider that it has been demonstrated to me that the welfare of EF requires that she be placed for adoption. I do not consider that it has been demonstrated to me that the less interventionist solution of fostering is inconsistent with her welfare. I think that the detriments of adoption outweigh the advantages as matters now appear. I think it highly unlikely that the Local Authority would twin track the case between fostering and adoption if a placement order were to be made. I think that such an order would be highly likely to result in all contact between this girl and her family ending. I do not consider such an order to necessary or proportionate and I do not consider that the making of such an order would place her welfare as the paramount consideration throughout out her life.

136. I therefore dismiss the application for a placement order. The effect is that EF will remain in care and will continue to have contact with her natural family. I will hear submissions if necessary on another occasion as to the arrangements for contact.

The only crumb of comfort for the LA is that in the face of a judgment like that, there wasn’t a paragraph 137 about an application for costs.

Can a Court make a Placement Order of its own motion?

 

I know, that sounds a lot like one of those questions that you get in newspapers like  “Was Ed Milliband responsible for Diana’s death?” in which you read the article and the answer buried towards the bottom is “no”

But I’m not so sure.

In a purely theoretical sense, you MIGHT have a Guardian who disagrees with the Local Authority care plan of rehabilitation to a parent / SGO and who supports a plan of adoption.  You MIGHT also have a Judge who disagrees with the LA plan, or more possibly is trying to cut out the stage of the process where there is a decision by the Agency Decision Maker to wait for as to whether adoption is the plan, and wants to have the final hearing without waiting for that.

You MIGHT even have a Local Authority social worker who believes that adoption is the right plan, but is prohibited from applying for a Placement Order because the Agency Decision Maker has said no to adoption or an application for a Placement Order.

In all of those circumstances, I would have said, well hard luck. The Court can only make a Placement Order where there is an application for one, and only the Local Authority can apply, and they can only apply when their Agency Decision Maker authorises it. [I have had each of those hypothetical situations happen, and on each, the Court accepted that there was no power to make a Placement Order without an application]

There’s no such thing as the Court making a Placement Order of their own motion.

 

That was, until I fell over this clause in the Family Procedure Rules.

4.3( 1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

So rather than our long tradition of the Court only being able to make orders of its own motion if Parliament expressly gave them that power, we now proceed in the opposite direction – they have the power to do so, unless the statute expressly prohibits it.

And I’ve checked the Adoption and Children Act 2002, and it does not expressly prohibit the Court making a Placement Order of its own motion.  Why would it? It was written at a time when if you wanted to give the Court that power, you’d explicitly make the provision.

The Court can only make a Placement Order if satisfied that the test is met (which can just be that threshold is satisfied) and that the parents consent is dispensed with, and of course the making of the Placement Order is subject to the welfare paramountcy principle, the welfare checklist and the no order principle. But it does not say expressly in the Act, only on an application.

s21 2)The court may not make a placement order in respect of a child unless

(a)the child is subject to a care order,

(b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)the child has no parent or guardian.

(3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied

(a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b)that the parents or guardians consent should be dispensed with.

This subsection is subject to section 52 (parental etc. consent).

 

So, theoretically, a Court could entertain the request of a social worker (acting without ADM approval) or a Guardian, or their own desire, and make a Placement Order even though the Local Authority have not applied, using rule 4.3.

I’m talking purely theoretically here – I strongly suspect that the first Court to attempt this would find themselves in the Court of Appeal as to whether it was article 6 and article 8 compliant to make such a dramatic and serious order without a formal application being before the Court.

Let’s see what else rule 4.3 says:-

(2) Where the court proposes to make an order of its own initiative

(a)it may give any person likely to be affected by the order an opportunity to make representations; and

(b)where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes

(a)to make an order of its own initiative; and

(b)to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 5 days  notice of the hearing.

 

Well, that’s nice – the Court isn’t actually obliged to tell the parties that it is going to make an order of its own initiative or to have a hearing to hear what the parties have to say about this plan. But if they do decide to have a hearing, they should give the parties notice of that.

You are saying to yourself, well surely that’s not right. The Court would HAVE to tell the parties and listen to their views before making an actual order, as opposed to directions.

Nope

(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

[Although if they do that, the order must say on its face that the parties have the right to apply to vary or set aside the order]

 

Again, for Placement Orders, this is purely theoretical. If I thought that a Court making a Placement Order without an application for one, at a final hearing, having heard evidence, would end up in the Court of Appeal, the idea that any Court would do so in the absence of a hearing is inconcievable.

[But it is theoretically possible]

 

This reminds me of my favourite story about the mathematician and logician, Kurt Godel.  Kurt Godel basically proved that in any formal system, there will be things that you intuitively know are true but that can’t be proved  – on a deep mathematical level there’s a difference between truth and proof.  Godel’s Incompleteness Theorum is probably my favourite thing in the world that is not a person or my spaniel.

If you want to know more, read Douglas Hofstadter’s “Godel, Esher, Bach, an eternal golden braid” – but be warned, it took me about five read throughs to have even a vague grasp of the Theorum, and that is an author trying to make it as user-friendly as possible. I dread to think what it is like to read the actual Theorum paper itself cold, with no background knowledge.

In a time of huge upheaval and totalitarian governments in Europe, Godel’s friends convinced him to leave his home country of Austria and come to America. During his immigration interview, the American customs officers asked him why he was leaving his own country. He told them about the oppression and that Austria had become a dictatorship. The customs officer said “Well, thanks to our constitution, that could never happen in America” , and it was at that point that Godel told him of the loophole he had found in the Constitution that could allow just that.

Not the best thing to say to an immigration official, but fortunately Godel’s explanation was so involved and complex that they didn’t follow it and waved him through.

 

It is also worth remembering that a Placement Order is permissive. It allows the Local Authority to place a child with prospective adopters. It doesn’t mean that they HAVE to.  So if a Court did make one against the wishes of the Local Authority, it wouldn’t mean that the child WOULD be placed with prospective adopters.

[It might well make things tough for a Local Authority if a Judge gave a judgment saying that placement with the mother was unsafe and doomed to failure and would be too dangerous for a child, if the LA ignored this and went ahead anyway. That would be a very tough Serious Case Review if it went wrong]

 

Although in the context of a Placement Order, rule 4.3 is largely theoretical, it might be handy for all sorts of other orders where you realise that you failed to make an application and invite the Court to make the orders of their own motion.

In case you are wondering about Care Orders –  I think that the construction of s31, wording underlined, means that Parliament envisaged there being an application made by a Local Authority. Is it expressly forbidding the Court to do it without? No, but it implicitly suggests not, and for a Care Order, suggests that the order can’t be made without an application.  [I’d also argue that the s37 provisions are a clear suggestion that a power and boundary as to the circumstances in which the Court could make ICOs without an application have been expressly provided for in the Act]

Care and Supervision

s31 (1)On the application of any local authority or authorised person, the court may make an order

(a)placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)putting him under the supervision of a designated local authority

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