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Category Archives: adoption

Revocation of adoption order

In this case, Pauffley J had to decide whether to revoke an adoption order that was made in 2004.  That is a very unusual application to hear, and still more unusual to grant.  The only successful applications I’m aware of before this were ones where the adoption order was made before an appeal could be heard and thus the revocation was just to restore the ‘status quo’ so that the appeal could be heard.

 

The major reported case was the one involving the Webster family, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

The other notable case involved the young man who had been adopted by a Jewish couple and brought up as a Jew but who learned in later life that his father had been a Kuwaiti muslim and his mother a Catholic  – the adoption meant that he felt he was unwelcome and misplaced in both sets of communities –  he could not live in Israel because of his ethnicity, and was unable to settle in Kuwait because he was officially Jewish.   That case also refused to revoke the adoption order  – rather controversially. Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239

http://www.bailii.org/ew/cases/EWCA/Civ/1995/48.html

 

Thus, you can see that such an application faces a considerable uphill task, when you look at those two cases (where an ordinary member of the public thinking about the facts would have almost certainly revoked both of the orders)

  1. The key passages from each were considered by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.
  2. I could not improve upon Bodey J’s analysis. He observed it was common ground that “the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances.” Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – “To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order.”
  3. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – “Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

[There is one reported case called Re M 1991, where the Court did use the inherent jurisdiction to revoke the adoption order, but there’s no link to it, and it is not one that I know at all.   The only links to it are via paysites, but here is a summary I have found of it, via Jonathan Herring in New Law Journal http://www.newlawjournal.co.uk/nlj/content/family-revoking-adoptions

 

 

Wall LJ gave as an example of an exceptional case where an adoption order had been set aside as Re M (Minors) (Adoption) [1991] 1 FLR 458 where two girls had been adopted by their mother and stepfather. The father had consented to the adoption but had not been aware that the mother was suffering from terminal cancer at the time. The wife died soon after, but the stepfather struggled to care for the girls and they returned to their father. The Court of Appeal was willing to set aside the consent order. The primary reason was that the father had consented on the basis of a mistake and that the father would not have consented had he known the truth about his wife’s medical condition.

 

[And a step-parent adoption is a rather different kettle of fish, and the father in that case had consented, but it was a classic issue of him not having been given the accurate state of affairs at the time of that consent]

 

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

In 2004, PK had been removed from her mother, and placed with adopters, Mr and Mrs K.  However, within 2 years, Mr and Mrs K had placed PK with relatives in Ghana, who went on to considerably mistreat PK.

 

  1. On any view, PK’s childhood has been troubled and disrupted. It might have been thought that when, aged almost four, she became an adopted child her future was assured. Almost certainly, the expectation of the judge who made the adoption order was that PK would enjoy stability, consistency and security as the adopted child of Mr and Mrs K. No professional involved with PK at the time she was adopted could have envisaged that within two years she would be cast out from the home of Mr and Mrs K and sent to live with extended family members in Ghana.
  2. Nor could there have been any indication that whilst in Ghana, PK would be abused by the adults with whom she had been sent to live. Her experience of adoption, particularly the arrangements made for her after the age of six, would seem to have been extremely abusive. She is desperate to draw a line under that part of her life.
  3. When, last year, PK returned to England, she was reunited with her biological mother and maternal grandmother. She is delighted to be back with them.

 

So, should the adoption order be revoked?  There seem to be many positive reasons why it should be. The child has no relationship at all with the adopters, who have (let’s be frank) badly let her down, and is now with her biological family.  But as a matter of law, it is the adopters who have any legal rights about her and not her biological family.  Her biological mother is no longer her mother in law.

 

  1. PK has extremely strong feelings about her legal status. It is very important to her that the court takes account of her wishes and firm views which are that she should no longer be the adopted child of Mr and Mrs K but instead revert to having legal status as a member of her biological family.
  2. PK very much wishes to once more assume the last name of her biological mother to reflect that she is her child and belongs to that family. She urges me to permit her to change her name enabling her to apply for an amended birth certificate and a passport showing that her name is the same as that of her natural mother.
  3. PK remains frightened and wary of Mr and Mrs K. She does not wish them to know precisely where she is living.
  4. There is no potential difficulty, as there was in Re W, Bodey J’s case, arising out of the need to notify PK’s natural parents or for that matter her adoptive parents. In this instance, all of those adults who should be aware of the application have been served. There is no prospective trouble. Mr and Mrs K, by their inaction, have signified their lack of interest in PK’s future. It is probably fair to assume their position is one of tacit acceptance.
  5. PK’s mother and grandmother are thrilled to have her restored within their family. They are committed to providing for her long term future; and fully support her applications.
  6. If I were to decline to revoke the adoption order and refuse to allow PK to change her name back to that of her natural mother, it seems to me that there would be profound disadvantages in terms of her welfare needs. PK would continue to be, in law, the child of Mr and Mrs K. They would have parental responsibility and the legal rights to make decisions about and for her. But there would be considerable, maybe even insuperable, obstacles in the way of them exercising parental responsibility for PK given that they play no part in her life and she wishes to have nothing to do with them.
  7. Moreover, against the background described, there would be emotionally harmful consequences for PK if she were to remain the adopted child of Mr and Mrs K.

 

 

The only counter argument was the “public policy” argument that an adoption order is one that ought to be final and secure and that in revoking orders that principle is undermined and weakened.

 

 

Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made Adoption orders and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of “highly exceptional and very particular” such that I can exercise my discretion to make the revocation order sought.

 

 

  1. The only advantage of a refusal of the application to revoke the adoption order would be the public policy considerations in upholding a validly made adoption order.
  2. I am in no doubt. The right course is to allow both applications in these highly exceptional and very particular circumstances and for the reasons given.

 

 

Absolutely the right decision.    [I would also have set aside the adoption order in Re B.  And I would have lost sleep over Webster, but ultimately I think that the passage of time since the orders were made and that the children had made new homes and new lives probably tipped the balance]

 

I don’t think that this is an ‘open the floodgates’ type of case  (though as Jack of Kent points out, the whole point and value of floodgates is that they can open, so it isn’t a bad thing), because the features are just so extraordinary and that informs the entire decision.

Couple “too old” to look after their granddaughter

I saw this case break in the Telegraph  http://www.telegraph.co.uk/news/uknews/law-and-order/11754837/Couple-told-they-are-too-old-to-look-after-their-granddaughter.html   where the line was that grandparents who were able, willing and capable of looking after their grand-daughter were turned down on the basis of their age and the child would be adopted.

 

That immediately didn’t sound right. It had the immediate ring of “I think that you’ll find its a little bit more complicated than that”.   [If you do find yourself being outraged and appalled by a case and you haven’t actually read the judgment, that’s usually a safe answer.  Of course, there are cases where reading the judgment actually does appall you at the scandal that’s gone on, but at least you are now being appalled on an informed basis]

 

That would fall extremely short of the legal tests involved, and you can see from the Telegraph article that they do include the comment from the Social Services department involved, who said flatly that age was not the deciding factor in the case.

 

The judgment is now available and people can see it for themselves

 

Re C 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B99.html

 

You can see that the grandparents made an application to Court, to challenge the assessment done of them that did not recommend that they could care for the child. The Court heard from them, including hearing evidence from the grandfather (who sounds like a thoroughly nice man, to be honest).  The Court then applied the statutory tests and the case law guidance to whether they should have that application granted and whether the child could live with them, or whether adoption was the right way forward.

 

Additionally, you can see that whilst the Judge does mention the age of the grandparents, it is mentioned in passing rather than being the reason for the decision.

 

The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.

 

The main concern however it seems to me is the fact that this family would be in my judgment completely unable to cope with the triangular relationship of C, M and the grandparents. Mr G expressed in evidence that he hoped that his daughter was going to recover her mental health, that she had had some recent treatment that over the next four years might lead to her mental health recovering. I very much hope that that is the case and it may well be right, but he was very clear that he was going to continue his relationship with his daughter and indeed he is to be commended for that. He said he saw her yesterday. I just cannot envisage how the triangular relationship can possibly work. Dr Martinez in her report expresses the concern that mother is unable to bring up C because she is likely to expose C to extreme behaviours – ‘scary situations’ is the word she uses – and she is referring to the incident in January when M in front of C self-harmed, cutting herself, and C was clearly in a scary situation witnessing her mother bleeding. That is exactly the type of situation which Dr Martinez envisages recurring and which puts C at the risk of significant harm if she were to be placed with her mother. If I were to envisage C being placed with her grandparents it seems to me that it is only a matter of time before C is put in that situation again. This is because of the conflict which the grandparents will experience in their meetings with their daughter, who they will not be able to turn away and in the conflict that is likely ultimately to create and which C is inevitably going to experience. Their personal circumstances are not ideal but ultimately it is that relationship which it seems to me makes it impossible for their application to succeed. Given the disruption to the local authority Care Plan against the likelihood of success of their application, I am afraid that I have no hesitation in saying that that application should therefore be dismissed.

 

Now, you may agree or disagree that this is a valid reason for saying no to these grandparents; but it certainly isn’t a decision that was made because of their age.

I don’t fault the grandparents at all for this – Courts can be confusing and scary places, and Judges use language and concepts that aren’t commonplace for ordinary people. Add to that, that of course this was an emotionally charged hearing and it is little surprise that the grandparents left not completely understanding all the reasons why the Judge said no to them, and that they got the wrong end of the stick.

Nor do I blame the journalist  – if the judgment had borne out what the grandparents said, that a Court had ordered that the child be adopted purely because the grandparents were too old, that would be a miscarriage of justice and a scandal worth reporting.  Of course, the journalist did have the clear rebuttal from Social Services that the case wasn’t about age, but also they had the comments from the solicitor engaged to represent these grandparents in an appeal  (which I doubt has any legs at all).  So it is not the flaw we often see in the Telegraph of the story having a single source – the journalist here did try to get multiple sources and to stand the story up.

You could make a criticism that the journalist didn’t try to get the judgment from the Court or wait for it on Bailii, but I think that’s to confuse the worlds of law and journalism.  Firstly, news stories are time sensitive. If the Telegraph waited for it to be published, they could have missed the scoop element that they had. And secondly, given that most lawyers can’t get an answer out of the Court service, what makes you think a journalist enquiring about “there’s been this case, I don’t have the case number, but can I have an anonymised copy of the judgment” is going to get any better response.

So I think it was okay for the Telegraph to run the story.  The problem, however, is that the Telegraph’s version of the story – that social workers and Courts rule people out just based on age, is the one that fluorishes and replicates and spreads, and the actual truth that the reasons for the decision were based on a Judge’s assessment of their ability to keep the child safe from mother, won’t get out there.

It is really important in care proceedings that family members who are able to help out, support the parents and ultimately offer a home if the parents can’t do it, come forward and aren’t put off. So, the story here spreads a myth that simply isn’t true.

I do appreciate that newspapers don’t exist solely as a vehicle to communicate the truth. They have to sell copies, they have to get clicks on their articles, they have to exist as a commercial venture. If they print articles that are factually accurate but that nobody wants to read, then the advertisers who want to sell their conservatories, plates with Princess Diana on them,  safes disguised as baked-bean tins, and mustard coloured polyester slacks*, won’t be placing those adverts.

I can’t actually work out a sexy way for the Telegraph and other news outlets to tell this story and correct the myth.  The best I can do is “Family Courts do still screw up from time to time, but they didn’t on this occasion. Sorry”   – and even I probably wouldn’t read that article.

[* Other products are, I’m sure, advertised in the Telegraph , and that’s just the sort of flippant generalisation and stereotyping that I would criticise them for when writing about social workers wearing corduroy trousers and knitting their own muesli.  It was just a cheap gag…   – now,  if you want to find “cheap gags” in the advertising section of a publication you are looking for something in the newsagents on an entirely different shelf to the Telegraph]

Has the adoption case law made any difference in your Courts?

 

 

I don’t pretend that this is scientific – given that it is on a law geek website, it is only going to get voters who actually know about Re B, Re B-S et al, whereas I know from training that I give around the country that substantial volumes of social workers have been told nothing about it.

 

But I thought that a poll might help to identify a broad trend. I have my own answer, but I’m sure that my answer must be coloured by my own local experience.

In voting, please vote for what you are actually seeing in your local Courts – it isn’t meant to be a vote about what you think OUGHT to be happening.  It is open to everyone, not just lawyers and social workers.  (It is probably easier for people who were dealing with these cases both now and before Sept 2013, but I’m not excluding anyone)

If you want to disseminate the poll more widely, to other colleagues, or to local solicitors or social workers or Guardians, that’s fine. The more people who respond, the more useful an indicator it might be.

 

 

[It is my first try at a poll on the blog, so bear with me if there are teething problems]

Martin Narey’s response

I wrote recently about Mr Narey’s speech to the Association of Directors of Children’s Services. He has put up a response to my response.

In order to stop us getting into an infinite regress of responses to responses, I won’t do a detailed reply.

Here is his response

 

Very very quick points

1. He didn’t have to do a response – I’m a very tiny fish and he swims in a proper pond with proper grown-up fish (and maybe some sharks), so respect to him for taking the time. And he did it with flair and humour, so fair play to him.

2. I think that we probably agree about more than you might think   (Adoption is the right outcome for some children, and if people are interpreting the case law of the last two years to mean that adoption is never right for any child, they’re wrong; and if the Court does make a Placement Order it is a disgrace for children to wait so long for a family and that needs fixing)

3.  I don’t think we’ll agree on what the law of the last two years is actually saying, but that’s okay.  Probably if you put ten lawyers in a room and ask them something you’d get eleven different opinions.

4. I think he accidentally puts a ‘not’ in when he’s quoting me here :- a lawyers’ job is to give advice but take instructions.

5.  I’m of course not privy to the conversations and discussions that have taken place between Mr Narey and the President. Those things are between themselves. I can only go on what the President has said in public, and there are two major sources there – firstly, his press conference where he accepted that there was a tension between the line the judiciary were taking on adoption (emphasising the nothing else will do) and the line that the Government was taking (emphasising that adoption should not be seen as a last resort) leaving Local Authorities caught in the middle and secondly his coda to Re R which can only be read as saying that the judiciary were not endorsing the Myth-Busting document.

 

I would genuinely like his views on the decisions since December 2014 that have moved children from prospective adopters to members of the birth family. Those are unprecedented developments, and I find it hard to think that it is coincidence that we had no such judgments from 1976 to December 2014 and four since then.  I do honestly worry about these decisions. I think that it puts prospective adopters in a scenario that they never ever wanted to be in  – a court battle fighting about where a child should live; it puts the child in a dreadful situation where they have been settled into a new home and then moved, and it puts the family in a position where the child has been placed with adopters and then returns to them and nobody can really predict the longer term impact or what support they need.  I’ve represented prospective adopters in my time, and the idea of Court always terrified them, even when you were able to reassure them that no Judge was ever going to take the child away from them.

 

 

 

Local Authority lawyers should grow a pair

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

 

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

 

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

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

 

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

 

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

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

Flag is going back in the cupboard now.

 

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

 

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

 

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

 

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

 

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

 

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

 

Well, where to start?

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

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

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

Nor have social workers.

 

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

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

 

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

 

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

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

 

 

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

 

The first is this one:-

 

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

 

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

 

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

para [215]:

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

 

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

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

 

The second omission is of course,

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

 

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

 

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

 

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

 

That is encapsulated by this passage

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

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

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

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

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

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

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

 

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

Let’s look at what the Court of Appeal said

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

 

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

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

 

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

 

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

 

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

 

and

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

 

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

 

 

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

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

 

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

 

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

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

 

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

 

 

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

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

 

 

 

 

 

The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case http://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  http://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Opposed adoption – outcome is child being placed with grandparents

 

Having gone 13 years without a successful opposition to an adoption order under the Adoption and Children Act 2002 (until Holman J’s case in December last year) and now we’ve had two in two days.   (Re S and T 2015 and this one)

 

Re LG (a child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/52.html

In this case, the Court was being asked to consider an application by a parent for leave to oppose an adoption application. The Court granted that application, and as a result the prospective adopters withdrew their application, and hence the child has gone to live with grandparents. So the judgment didn’t actually finalise what the Court would have done if it had gone on to a fully contested adoption (but I’m sure that the prospective adopters saw that the writing was on the wall and didn’t want to subject themselves to further pain and subject the child to delay)

 

It was common ground that the grandparents were able to offer good care for the child and that had they been considered during the care proceedings, the child would almost certainly have been placed with them.

So why was it that they WEREN’T considered during care proceedings? That would have avoided the child being placed for adoption and been with prospective adopters for nine months?

It is the father’s case before this court that he declined to tell his family about L’s existence because he felt “scared” to tell them as “he had embarrassed and shamed [his] family and let them down again”. As a result, the extended paternal family had no knowledge of L’s existence during the currency of the care proceedings. The father was pressed by professionals, including the allocated social worker and his own solicitor, to explain why he did not want his family to be involved. During the course of these discussions, he alleged that he had suffered physical abuse at the hands of his own father, L’s paternal grandfather. His case before this court is that this allegation was completely untrue and was said with a view to “getting people off his back”.

 

A word immediately springs to mind about this father, and that word rhymes with ‘glass’  (if you are from the South of England).  He really was an absolute glass in this case.

 

it is obvious to everyone in these proceedings, and it will be obvious to everyone reading this judgment, that these events have been brought about by the father’s conduct. He is a young man, and he has not had the opportunity to explain his conduct in oral evidence before me. On any view, however, it must be acknowledged that as a result of his actions, a number of people have suffered very greatly. Mr and Mrs A, and their older child, have had to endure the terrible ordeal of losing the little girl to whom they had made the extraordinary commitment that all prospective adopters make. Furthermore, his daughter, L, has to cope with the distress and upheaval of moving from the home where she is settled and thriving to live with people she does not know. All this has come about because of the father’s misleading and deceptive behaviour. I hope he will now do whatever he can to ensure that L’s life with his family is as secure as possible.

 

It is quite hard for me, as someone who does Local Authority work all the time, to see how the LA could have gone ahead with their own assessment of the grandparents given that the father didn’t want them to be approached and made a child protection allegation against them.

The system that we have in place involves the parents putting forward family members – these days the issue is raised at every single hearing and included in the order and parents are warned that if they delay in putting forward a family member it may be difficult to get them assessed later on. Or sometimes, the family member comes forward themselves.

It is effectively an “Opt-in” situation – a family member is approached about being a possible carer for the child if and only if their hat is thrown into the ring.

But in a situation as here, where the family member doesn’t know about the proceedings and the parent doesn’t want them to be told, what can you do?  Remember that the reasons for care proceedings can be very sensitive and parents in care proceedings don’t always have a close relationship with their family. As this father said, there can be a sense of shame in your wider family finding out that you have been accused of something or that you are said to be a bad parent.

From a legal perspective, the fact that a parent is in care proceedings is Sensitive Personal Data for the Data Protection Act, and without parental consent, the circumstances in which you could share that information with a family member is really limited.

 

And then, looking at the Family Procedure Rules about the sharing of information about proceedings  (which, in the absence of a parents consent would also include that such proceedings even exist) seem to me to be a bar to telling a grandparent that there are care proceedings in order to explore whether they would put themselves forward  – unless there is leave of the Court.

Finally, there are the article 8 considerations.  The father here (even if we think he has some glass-like qualities) has a right to private and family life, and that can only be interfered with if it is proportionate and necessary.

So, all in all, I think that if there’s a scenario in which family members are known about but the parent objects to them being involved, that’s an issue that has to come before the Court and a decision made.  (I can think of a LOT of situations where a father or mother would be perfectly legitimate in not wanting members of their family to be involved)

I’m not sure that even that is a total solution.

 

Suppose a Court (or a Practice Direction) says that in any case where adoption might be the alterantive that rather than an “opt in” (throw your hat in the ring) system that instead the LA will get out there and chase down and assess any family member who might be suitable.

Okay, you might catch grandmother and grandfather in your net that way, but only if the parent is willing to give you their details so that you can find them.  How big is the net? Do you stop at Uncles? Great-Uncles? Cousins? Don’t forget friends – the Act is all about connected persons -or families and friends. You might be able to get a family tree out of a parent  (though good luck in doing it with parents who are in the grip of heroin use and who don’t engage with the process at all), but are you going to get a full and exhaustive list of all of their friends too? What if they make new friends between the care proceedings and the adoption application?

If you cast the net wide enough to catch everyone, then you are going to have an unholy amount of investigation and checking to do to give the Court information about everyone in the net to be sure that there’s not someone there who could be a carer for this child. You aren’t going to do that within 26 weeks. Hell, even finding some of these people can take longer than that.

And is a Local Authority (or a Court) really going to push for an assessment of a grandfather in a case where his own son (as here) says “When I was a child, this awful thing happened to me”?   On a twenty-six week timetable? I think not.

So I see what Baker J is getting at when he says this :-

 

although I have no specific criticism of this local authority’s work, (which I have not had an opportunity to examine in detail), this case illustrates the crucial importance of identifying at an early stage in public law proceedings any potential family members with whom a child can be placed. Local authorities must strive to identify the best possible methods of identifying such placements, and must not easily be distracted by comments made by natural parents which may conceal the truth.

 

I am not at all sure that this sentiment survives any contact with the real world, when you think what is involved.

The Judge is as nice as he can be to the prospective adopters, but I’m sure these words are as small a consolation as the consoling words given to parents after  care proceedings are

    1. My final observations are addressed to Mr and Mrs A. I can hardly begin to appreciate the anguish that you, and your older child, must now be feeling at losing the little girl whom you accepted into your care and looked after in an exemplary fashion. Although the birth family undoubtedly had a strong argument for opposing adoption, I do not know for certain what order I would have made at the conclusion of a contested hearing. You have made the courageous decision not to proceed with your application and to allow L to return to her birth family as soon as possible. I had not been told in detail the reasons for your decision but, from what I have read, I am confident that you would not have taken this step unless you believed it to be in L’s best interests. In those circumstances, I have nothing but admiration for your actions. I know that there will be some contact between L and you and your other child, although the details are yet to be agreed. I am sure that, as she grows older, L will come to understand and appreciate the wonderful things that you have done for her, both in looking after her for the past eight months, and in making this great sacrifice that has enabled her to be returned to her birth family.

 

 

There is a legal argument about the fact that father’s case at this hearing was really both an application for leave to oppose an adoption order AND a simultaneous application by the grandparents for a Special Guardianship Order, and thus whether the grandparents application (which required leave) should be heard under that test. The Court weren’t persuaded by that.

Counsel for the prospective adopters made what I think are some telling and important points about public policy – they didn’t succeed, but as more cases about adoption involve long-drawn out contested court hearings and a degree of unpredictability about the outcome, that is going to inexorably lead to less and less people being willing to put themselves through that.  I’ve represented adopters in the past and they all utterly dreaded the Court hearings and didn’t sleep and worried about the outcome – and that was in the days when I’d be able to advise them that the prospects of the adoption order not being made were vanishingly tiny.

As Ms Hyde of counsel says – the only real way for adopters to protect themselves and the child that they are considering as a family member in Court proceedings, is to delay the application so that it has been two or three years since the child came to live with them, so that no Court would contemplate moving the child.  That’s the exact opposite of what the Government are trying to achieve with adoption, and I’m sure that also there are many good reasons why that lack of finality and the order itself is not good for the family dynamics  (otherwise why ever have the adoption order? Just stay on a Placement Order forever)

 

Miss Hyde submits that the court should give particular weight to policy considerations. She contends that, if the court now allows an application which may thwart a successful adoption application, there will be grave and wide-ranging policy consequences. First, Miss Hyde submits that it will lead to a reduction in the pool of prospective adopters who will be discouraged from coming forward if there is perceived to be an increased risk of a late challenge to the adoption after the child has been placed. Secondly, she submits that the advice to future prospective adopters would inevitably be to refrain from making the adoption application until the child has been placed with them for a number of years so as to reduce the risk that the application will be opposed. This would be contrary to public policy because it would extend the period of uncertainty for the child. Thirdly, she contends that it will be extremely difficult for any court to control the timetable for assessment of family members in care proceedings, and thus the policy of identifying such placements as quickly as possible, which is an important feature of the Public Law Outline, (now in Practice Direction 12A of the Family Procedure Rules), will be undermined.

 

I think Miss Hyde is right on every single aspect. Does it mean that the Court were wrong in this particular case? No, I don’t think so. But these legal decisions can’t be looked at in isolation.  They are an interesting discussion point for us lawyers, but if you are a prospective adopter who has taken a child into their home and into their heart, a case like this is a shockwave.

The Judge said this

  1. The crucial point, however, is that the purpose of all these policies is to serve the overall welfare of children. Where the law requires the court to give paramount consideration to the welfare of the individual child, and her welfare clearly points to one particular outcome, it would be manifestly wrong to allow her welfare to be overridden by any policy considerations.
  2. Furthermore, anyone reading this judgment will realise that the circumstances of this case (the father’s deceptive and misleading conduct, and the subsequent discovery that the birth family is, on the written evidence, manifestly able to care for the child) are very unusual. I hope, therefore, that prospective adopters will not be discouraged from coming forward as a result of this case. Adoption has a crucial role to play in our society and it is very important that people should not be discouraged from putting themselves forward as adopters. Those who do must, however, be advised that, where placement orders have been made, the law allows parents to be granted leave to oppose an adoption application where there has been a change of circumstances and the court concludes that the child’s welfare, which is the paramount consideration, requires that leave be granted. Applications for leave will only be made in a minority of cases and in most cases are unlikely to succeed, but Parliament has allowed the right to apply for leave to oppose adoption applications in such circumstances and all prospective adopters should be advised that this is the law.

When I wrote about Holman J’s case, I wrote that an easy inference about the case was that it was an extraordinary set of circumstances that would never arise again and it could be discounted,  it was a stable door that could be shut although one horse had got through and bolted

 

but that a closer inspection of the case showed that at heart, it was about a family member who wasn’t assessed within care proceedings and could demonstrate that this wasn’t their fault.  That is a set of circumstances that could potentially apply to any case.  This case proves the point.

How can I know, how can adopters know in any case, that every family member who might concievably come forward in a years time, two years time, was considered and dealt with in the care proceedings?  Maybe they weren’t in a position to care THEN, but they are now…

Is there such a thing any longer as an adoption application that is water-tight and can be considered as a sure thing?

 

This isn’t the last of these. Not by a long shot.

 

I look forward to seeing the Myth-busting document on these developments.

 

 

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