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Adoption and Islam : Milton Keynes and the Diet of Worms

 

If you want the recipe for Milton Keynes v X and Y 2014 it is this

 

 

  1. Open can
  2. Decant worms from can
  3. Liberally distribute worms everywhere

 

[Quick disclaimer - this post and the case deal with issues of faith. I am a heathen unbeliever, and I'm afraid that flippancy is something of a knee-jerk reaction for me. I have genuinely tried to rein that in, and be respectful of other people's faiths. I may inadvertently have failed to do that, or accidentally said something which will annoy or upset people of any faith. That's not my intent. I don't have beliefs myself, but I respect those who do.  The same will be true of the comments - keep them respectful please]

 

The case is here

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B102.html

 

It is a decision from a District Judge, and I actually think that it is a very good judgment – it is thorough, analytical and has a very good innovation of putting a real-person-friendly summary at the end of each section.

 

I think that it does lose it in the last few paragraphs, notably because you can’t actually tell whether the Judge has made a final order and if so what it is, but it was undoubtedly a difficult case to wrestle with.

 

Let me stress, that as a decision from a District Judge, it is not binding authority (other than being binding on the particular case concerned), but the DJ is right, it raises important wider issues and the Judge was right to publish it.

If I have the Judge’s gender wrong, I apologise, I had to take a guess at it. In doing so, I realised that my stock gender attribution for Circuit Judges is female and for District Judges male, soI deliberately flipped that around.

 

The central dilemma in the case is this – in a case involving children of Muslim parents, once the Court has decided that they cannot go home, is it right to weigh into the balance when deciding about adoption the Islamic beliefs about adoption?   And can those beliefs tip the balance?

 

It is somewhat odd that the case doesn’t refer to the lead authority on this very point, which is Newcastle v Z 2005. [Not the Judge’s fault, she ought to have been taken to it by someone]

 

In the Newcastle case, Mr Justice Munby, as he then was, had to look at this very issue. In that case, he had to look at whether mother was ‘unreasonably withholding her consent’ to adoption, given that her chief objection was based on her faith.

 

 

40. It is clear that the mother has a very deep and utterly genuine commitment to Islam.

 

41. That was apparent from the views she expressed in the course of her evidence, from the way in which she gave that evidence and, indeed, from the way in which she handled and kissed the Quran before taking the oath. I intend no offence when I say that her beliefs come over as the simple, unsophisticated and unquestioning faith of a woman who, despite her twenty-five years in this country, is still very much, I suspect, located socially, emotionally and religiously in the peasant society of Kashmir from which she sprang. But what is clear, and needs to be recognised, is that her faith is both very real and very important to her

 

[Thank goodness that he intended no offence, when describing her basically as a simple peasant girl with unsophisticated beliefs]

 

42. Her religious objections to adoption were simply but passionately stated. She considers adoption to be against her religion. She believes that the Quran – much of which she knows by heart – says that it is a mother and father’s responsibility to bring up their children and that adoption is wrong.

“Adoption is not allowed by Islamic law. My religious beliefs would therefore prevent me from giving my consent even if I thought that adoption was best for S which I do not.”

 

She believes that if a child is adopted then when he dies his soul will not get peace. She believes that if S is adopted, not merely will he lose his inheritance rights to certain family land in Pakistan but that she, in consequence, will not be able to go on Haj. She recognises that the Quran permits Kafala, which she describes as being very much like foster care, but says that Kafala is very different from adoption, as the child keeps the surname and inheritance rights of the biological family. She says that the Quran does not permit the full separation of a child from the family as happens with adoption.

 

 

[Haj is the pilgrimage to Mecca, which all followers of Muslim have to make once in a life-time. It is a core part of the faith. If the mother had not already undertaken Haj, and would be forbidden from doing so if her son was adopted, this would be very significant for her faith. But then, blood transfusion is forbidden by the Jehovah's Witness faith, and that has never cut any ice with the High Court. And of course, the Courts have been ready to reject faith-based arguments from Christians about all sorts of things over the last few years]

Mr Justice Munby (as he then was) analysed some material and documents that explored the religious implications of adoption for those of the Islamic faith, concluding this:-

 

 

46. In broad outline all this material is to much the same effect. There is no adoption in our sense of the word in Islam, but Kafala is well established in Islam as a means of providing care to children, allowing a child to benefit from the care of a good home whilst at the same time losing neither his family name nor his rights in his birth family. Kafala is best understood as the long-term fostering of a child without the right to kinship. Under Kafala the “adoptive” family never takes the place of the biological family, whose ties to the child are never severed; the “adoptive” family are trustees and caretakers of someone else’s child. The Quran (33:4-5) specifically reminds “adoptive” parents that they are not the child’s biological parents:

 

“Nor has He made your adopted sons your (biological) sons. These are but (figures of) speech uttered by your mouths …

Call them by their father’s names; this is more equitable in the sight of Allah. But if you know not who their fathers were (call them) your brothers in faith and your friends”.

 

 

The Judge in Newcastle v Z accepted that these were the mother’s genuine faith-based beliefs about adoption and that they were a genuine part of Islamic faith.

 

48. As I read him, the expert in the case before Charles J treated adoption as something not recognised by the Sharia and also, it would seem, as something prohibited by the Sharia, in the sense that the natural rights which a parent has in relation to his or her child do not include the right to agree to adoption. But there is nothing in any of the materials I have been shown to suggest that to give up a child for adoption constitutes a wrong or a sin exposing the parent to penalty or punishment. The only reference to sin in this context that I have been shown is in the Quran (2:233) where the following appears:

 

“And if you both (parents) decide, by mutual consent and counsel, upon separation, you will incur no sin if you decide to entrust your children to foster-mothers, you will incur no sin provided you ensure in a fair manner, the safety of the child which you are handing over.”

 

49.  That said, this case is not to be determined by reference to some abstract principle of Islam but having regard to the mother’s own religious and other beliefs. The fact is – and I so find – that the mother believes (and believes that in so believing she is a good Muslim) that if S is adopted then when he dies his soul will not get peace, and she likewise believes that if he is adopted she will not be able to go on Haj. Those beliefs may or may not be borne out by the Quran and the Sharia, but they are the mother’s beliefs. And they are also, I am prepared to accept, beliefs that can conscientiously be held by a devout Muslim as the mother believes herself to be.

 

 

Nonetheless, the Judge in Newcastle v Z still went on to rule that the mother was ‘unreasonably withholding her consent’.   This bit of the judgment may call to mind angels dancing on the head of a pin, as the Judge rules that she is ‘reasonable’ but ‘unreasonable’ at the same time, but this was the nonsense of the 1976 Adoption Act, where the need to rule that a parent was behaving ‘unreasonably’ in objecting to non-consensual adoption led to a great many hearings where salt was rubbed into wounds.

 

51. The mother’s religious beliefs are in themselves reasonable – that I entirely accept – but she is nonetheless, in all the circumstances of this particular case, acting unreasonably in relying upon them as a justification for refusing consent to her son’s adoption. The mother’s religious views demand respect and call for particular and sensitive consideration, but at the end of the day the question is whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of S are sufficiently strong to justify overriding the religious and other views and interests of the mother. In my judgment they are. A reasonable parent in the mother’s position, even one holding the mother’s particular religious views, would nonetheless accept that adoption is in the best interests of her English son. The mother, in my judgment, is acting unreasonably in taking the other view.

 

 

We now don’t have the ‘unreasonably withholding her consent’ test, as the test for finally making a Placement Order is that either the parent consents, or the Court decides that the child’s welfare REQUIRES that consent be dispensed with.

 

It is that little word ‘REQUIRES’, which some years ago the previous President said was a ‘common sense English word’ (Re P) and has now been developed post Baroness Hale’s minority (but hugely influential) judgment in Re B, into the ‘nothing else will do’ principle; carrying on its back all of the proportionality concepts.

 

As outlined in Re B-S (see about one blog post in four from the last twelve months, and if you have not so far heard of Re B-S, then you’ve got quite a bit of reading to catch up on. Have you just been in Court with His Honour Judge Wildblood QC, by any chance?), the Court has to avoid a linear approach and to look at the pros and cons of each placement option. The Court can’t simply rule out a parent based on the negatives and then go to adoption as being what is left; the negatives of adoption and the positives of placement with a parent have to be taken into the mix.  The faith implications surely have to go into that balancing exercise, rather than as the Judge did in Newcastle acknowledge that they existed but that they played no real part in any actual decision.

 

So, the question is, post Re B-S, is the approach of Newcastle v Z still good law?

 

It would have to be the case that the parent’s genuinely held religious beliefs about adoption would have to go into the negatives column on the option of adoption. They probably (?) don’t, of themselves defeat adoption as a possibility, because if so adoption would just be ruled out for any child of Muslim parents.  One can readily see that being abused by people as a ‘get out of adoption free card’  by converting at the doors of Court.

 

So, Newcastle stands up on it not being determinative, but I suspect that in a finely balanced case, it might be a very important factor.

 

That raises some questions of its own – if the incorporation of that factor is capable of tipping the balance in a finely balanced case, then children of Muslim parents are potentially being treated differently to those of non-Muslim parents.   Possibly a case could involve two half-siblings, one half-Muslim and one non-Muslim. Are those children in the SAME case to be treated to different standards? What about a case where the parents are not Muslim, but the grandparents are? What about if only one of the grandparents is Muslim? Where do you stop? Where the child is 1/8th Muslim? 1/16th ?  How devout do the parents have to be? Is it intrusive and offensive to even enquire about that?

 

 

In the Milton Keynes case, the Judge was taken to the Islamic beliefs about adoption (they are similar to those expressed in Newcastle, but there are some interesting additions  – for example that the central figure in Islam had himself adopted a child)

 

 

The children here had a Muslim mother and a non-Muslim father

 

102. I am concerned that one form of long term placement that has not been realistically explored by the Local Authority, or by the Guardian, appears to be Special Guardianship, which the Guardian considers only in the context of a family member being appointed as special guardian and the Local Authority considers not at all. This case, I recall, concerns two boys who are Muslim; and X in particular is taking a serious interest in his Muslim heritage.

 103. The author “Huda” writing on the website Islam.about.com expresses the matter in this way:

 

The Prophet Muhammad (peace be upon him) once said that a person who cares for an orphaned child will be in Paradise with him, and motioned to show that they would be as close as two fingers of a single hand. An orphan himself, Muhammad paid special attention to the care of children. He himself adopted a former slave and raised him with the same care as if he were his own son.

However, the Qur’an gives specific rules about the legal relationship between a child and his/her adoptive family. The child’s biological family is never hidden; their ties to the child are never severed. The Qur’an specifically reminds adoptive parents that they are not the child’s biological parents:

“…Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. .”

(Qur’an 33)

Of course, in English law, an adoption order has the effect of making the adopted child, for all purposes the child of the adopters. There undoubtedly are observant Muslims who are prepared to accept the idea of adoption, in the same way that there are undoubtedly Roman Catholics who accept the laws of divorce. But it must plainly be right to respect the view of any devout Muslim, who says in the face of that teaching contained in the Qur’an that adoption as understood in English law is unacceptable.

 

 

The Judge in Milton Keynes referred to the philosophy underpinning Special Guardianship Orders, which in part were a solution for the faith-based difficulties with adoption. She quoted the White Paper

 

 

5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.

 

5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.

 

 

This is, frankly, a bloody good point. Part of the rationale for introducing Special Guardianship Orders were that there are sections of the UK population that have a faith-based objection to adoption as it is practised in the UK. Surely if that’s the case, then it ought to be considered as a solution in such cases?

 

 

The Local Authority in this case were saying that there simply isn’t a pool of ‘prospective Special Guardians’ in the same way that there is a pool of foster carers or prospective adopters. Special Guardianship really only represented a solution for children who needed permanent homes outside of the family if there were existing people in the children’s lives (wider family or foster carers) who would be suitable and willing to have a Special Guardianship Order. You can’t HUNT for Special Guardians, you can only find a person who is able to care for the child and then ask them whether Special Guardianship is something they would want to do.

 

(In short, the Court can’t make Special Guardianship Orders generically and ask the Local Authority to find the right people at a later stage, it can only look at the right people and decide if a Special Guardianship Order was the right order)

 

The Judge wasn’t taken with that argument

 

it appears to me to be entirely unacceptable, and to put the cart before the horse, for a public authority to say “We haven’t got in place mechanisms to implement a measure provided by Parliament, and therefore we do not even propose to try”.

 

 

The solution that the Judge favoured was that the current foster carers be approached, with a view to permanently caring for these children under a Special Guardianship Order. It makes perfect sense to me for this enquiry to be made (and frankly, one would expect that it HAD been made prior to the final hearing)

 

I would invite the Local Authority to give careful consideration to the matter, and to whether it would not be more appropriate to regard long term placement with the existing foster parents as the outcome which would best meet the boys’ needs if permanency in it can be achieved.

 

I would ask the Local Authority specifically to amend their care plans to clarify timescales and the criteria on which they would seek to move the boys from their existing placement, and to make it explicit that the boys will not be separated from one another and will not be accommodated in short term placements

 

 

In a more general sense, there’s another time at which the Court might be weighing up Special Guardianship v adoption; and that is in a case where the parents are seeking leave to oppose the making of an adoption order.

 

The High Court dealt with that earlier this year in Re N (A child) Adoption Order 2014 (see this post http://suesspiciousminds.com/2014/05/10/special-guardianship-versus-adoption/   )

 

 

There are some key strands to be drawn together then

 

  1. In seeking leave to oppose adoption, Re B-S says that when measuring whether a parent’s application has ‘solidity’, one is not looking at just whether they would get the child back, but whether they could persuade the Court to make another order.
  2. The Court can impose a Special Guardianship Order on a person who doesn’t want one – there is clear Court of Appeal authority from the very first batch of Special Guardianship cases (Re S) that the Court could look at someone who had applied for adoption and make a Special Guardianship Order instead

 

  1. The Courts accept that there is a genuine faith-based objection in the Islamic faith to adoption as it is practiced in the UK

 

  1. Part of the rationale behind Special Guardianship was to resolve that faith-based objection

 

  1. From Re N, the High Court have set down a marker that it was due to ‘exceptional circumstances’ that they did not acquiesce to father’s request that the Court make an SGO as an alternative to adoption.

 

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

 

 

It would seem to me, and I am no expert, just an opinionated law Geek, that the door to successfully challenge an adoption application on religious grounds and substitute it for a Special Guardianship Order is at the very least ajar, if not coming off its hinges.

 

 

Do Local Authorities, Guardians and Courts have to bear that in mind when considering making the Placement Orders in the first place? Do adopters who are considering taking on children with Muslim parents need to be advised that this placement might be susceptible to a successful challenge? Is there a need for a national recruitment and register for people willing to care for Muslim children for life under SGOs?

 

 

In the words of Chandler Bing – “Can open. Worms. Everywhere”

step-parent adoptions and nothing else will do

The Court of Appeal in Re P (a child) 2014 considered an appeal from a Judge who refused a step-parent adoption having applied the law (or at least the gloss on the law applied in the last year)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1174.html

 

Boiling it down to one question – does ‘nothing else will do’ apply to step-parent adoptions where the biological parent who is being ousted as the legal parent doesn’t consent?  Well, of course it does, one would immediately say. The whole thrust of Re B was about ‘non-consensual adoption’, that’s a  non-consensual adoption. And the whole hook of Re B was using the word ‘requires’ in the s52(1) (b) test  to carry with it a huge additional weight of proportionality and nothing else will do – running counter to the former President’s decision in  a previous  Re P that ‘require was a perfectly ordinary English word’  to import a meaning  that was much much more. (To be fair, that’s an additional amount of meaning taken directly from the ECHR decision of  Y v UK, which in effect was ‘the ECHR lets the UK persist in its weird ideas about adoption, but we only tolerate it if you take it bloody seriously’)

 

The legal test for dispensing with the father’s consent to make a step-parent adoption  (and these cases are almost always about fathers being cut out of children’s lives and legal relationship of fathers being severed – you just don’t get many stepmother adoptions) is s52(1) (b),  – the child’s welfare requires consent to be dispensed with.

 

So, of course, it must be ‘nothing else will do’.

 

And if it is “nothing else will do” then it is going to be spectacularly hard to demonstrate that for any proposed step-parent adoption  (not just that it would be better for the child to make the order but that there is literally no other solution – ie the status quo can’t remain for reasons which are hard to fathom, looking from the outside)

 

So, nothing else will do almost certainly kills off step-parent adoptions.

No, the Court of Appeal say otherwise.  (I will make it plain that I think this decision is wrong, but it’s the law, and we are stuck with it. I think it flies in the face of common sense, ignores the principle of least interventionist order and is particularly prejudicial to birth fathers)

 

Here is the Court of Appeal test for step-parent adoptions  (drawn from a 1999 ECHR case, Soderback v Sweden, which distinguished between State adoption and adoption within part of the biological family)

 

a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent ['Parent B'], and thereby make it more likely that adoption is a proportionate measure are:

i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;

ii) Where Parent B has had only infrequent or no contact with the child;

iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties have existed for a significant period.

 

Those all seem to me very good reasons for a step-father having PR, but why are they good reasons for making an adoption order and changing a step-father into a legal father, and changing the biological father into a person with no connection to the child whatsoever?

 

The Court of Appeal do say that where the biological father is involved and opposes, the position is that the adoption should be a rare event and that the case ought to be resolved by making private law orders instead (there’s the ability to grant a step-father PR, or Child Arrangement Order (residence), even a Special Guardianship Order – although that would be insane, because it would give the step-father the legal power to override the birth mother. That’s so crackers that… it will probably happen within the next year)

 

In so far as the earlier domestic cases to which I have made reference establish that, in the event of Parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders, that approach is entirely at one with the modern private law relating to children which seeks to determine aspects of the delivery of child-care and the discharge of parental responsibility either by parental agreement or by a child arrangements order under CA 1989, s 8.
 

The making of an adoption order is primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. Thorpe LJ’s words in Re PJ adhering to the aptness of earlier cautionary dicta, and reminding professionals of the need to be aware of the motives, emotions and possible unrealistic assumptions about any new family unit, remain as wise and sound as they were when uttered in 1998. In this manner, the approach of the domestic case law sits easily alongside that of the ECtHR in Söderbäck v Sweden

 

The earlier authorities on contested step parent adoptions thus still apply, despite their antiquity so here they are

 

In Re D (Adoption: Parent’s Consent) [1977] AC 602 the House of Lords gave consideration to a step-parent adoption application made by a mother and her new husband, which was opposed by the child’s father. Lord Wilberforce, at page 627, laid stress on three matters:
 

 

i) that under the statutory test for dispensing with parental consent, as it then was, the child’s welfare was only one consideration; the test being ‘reasonableness’ (Adoption Act 1958, s 7); 

ii) consent should only be dispensed with in rare and exceptional cases, and this was ‘all the more so in cases … where the adoption is desired by one natural parent and the other refuses consent';

iii) an adoption order, which is irrevocable, should not be used to deal with practical considerations concerning custody, care and control or access.
Dicta of the Court of Appeal (for example that of Bagnall J in Re B (Adoption by Parent) [1975] Fam 127 at page 146) endorsed the third of these points and indicated that, in the event of the other natural parent opposing a step-parent adoption, the court would strive to achieve an outcome by ordinary private law orders rather than adoption.

 

 

This is going to make the issue of service of the birth father a very critical issue. If the birth father has been served and doesn’t turn up, the Court will probably make the step parent adoption order if it can be shown that the current family unit is settled and happy and that the birth father’s role has been limited. If he does turn up, the Court will probably NOT make the order.  Thus, making sure that the birth parent has been served is vital, and of course the likelihood is that these applications will be made after mum and birth father have been estranged for some years and without the benefit of public funding.

 

Relinquishing for adoption and nothing else will do

This is a High Court case, decided in April, but the report of judgment has only recently come out. I’m grateful to Celtic Knot for ensuring that it came to my attention
I touched on the (at that time unresolved) issue of whether the raft of jurisprudence on ‘non-consensual adoptions’ also applied to step-parent adoptions and relinquished babies where the mother was giving the child up for adoption but the father was not identified/told.

http://suesspiciousminds.com/2014/04/12/step-parent-adoption-telling-the-birth-father/

and this High Court case Coventry City Council and A 2014 deals with the relinquished adoption issue (and my next blog post will deal with the Court of Appeal’s decision on step-parent adoptions)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2033.html

If you want the Too Long; Didn’t Read version – it is that I would be very cautious about relinquished adoptions particularly if there is any international element. If either parent is from another EU country, I would strongly urge you to read the judgment in Coventry CC and A. I suspect that it will make ‘relinquished adoptions’ considerably more protracted, complicated and expensive.
This case took nearly a year to resolve (with a baby that mother wanted to give up for adoption – so twice as long as fully contested care proceedings are intended to take)

Part of the reason why is that the mother was Romanian, and the High Court embarked on a process of notifying the Romanian authorities about the existence of the child and the potential order that would be made in the UK courts.

Let’s look at what mum had to say about her extended family

The hospital was able to contact the mother through her friend, Z, via a mobile phone and a meeting was arranged with the mother to attend the hospital on 7th June. Initially the mother failed to return but, ultimately, after some persuasion, she did so with her friend Z. She was spoken with through an interpreter speaking Romanian. At this meeting she gave her baby a name after some prompting with the social workers and held the baby for the first time showing some emotion in doing so. The mother gave information about her and her baby’s background. She said that the father was Romanian Roma but she was herself Romanian. She refused to provide the father’s name. She said that her family were not aware of her pregnancy. She had not told them about it or her relationship with the father and she had concealed the pregnancy from them. She said that her family would not approve of the relationship with the father as he was Roma and her mother would disown her if she knew. She wanted the baby to be adopted. She intended to return to Romania as soon as possible after she received her new travel documents.

She said she was from a named village in Romania, that she had two other children residing there, a son aged nine and a daughter aged ten and they were being cared for by their maternal grandparents. She had no money to support a baby. She said the father was aware of the pregnancy but was not interested and he was not aware that the baby had been born. She had come here on holiday to see her friend, Z, who came from the same area as the maternal grandparents. She had not told Z about the pregnancy until her waters broke. She said she had no fixed abode, she moved between the homes of various friends and had been evicted the evening before and was at that time staying with a friend of Z.

That seems, to me, to be a very clear message that the mother did not want her relatives approached or told of the existence of the baby.

Unfortunately, mother did not help herself because she didn’t attend the appointment with a CAFCASS officer to sign the adoption forms. Nor did she attend the second such appointment, and then she vanished.

The baby was thus not, in law, relinquished. Mother had agreed to give the baby up for adoption but had not signed the paperwork that would be a vital part of the process. That meant that rather than being a relinquished baby adoption, this had to go into care proceedings.

And, the case having gone into care proceedings, efforts had to be made to find and serve the mother.

[HUGE LESSON here – if you are dealing with a mother who wants to relinquish her baby, it is vital that she is made to understand that not filling out the forms is going to make life much worse for her. Fine to decide ‘I don’t want to sign them because I want the child back’, but ‘I don’t want to sign the forms because I want to stop thinking about this’ is just going to make things much much worse]

It made things much much worse for this mother here, because a process server was sent out to look for her in a Romanian village near Bucharest

The process server met with the mother’s own mother who is Romanian, who told him she is looking after the children at the family home, that the mother was not in Romania, she had left a few months ago to go to the United Kingdom. She said that the family believed she was working as a prostitute in the United Kingdom and recently had had problems and had been in hospital. The process server was unable to gain any further information but was able to say that the address in Coventry, which the mother had given to the local authority, did not exist.
In the second report, dated 30th November, the process server described the village as being small, about 100 kilometres from Bucharest, with “a majority gypsy population very poor and simple peoples.” He met with the mother’s own mother again who was shown a photograph of the mother. Initially she denied recognising the mother but later produced a copy of the mother’s ID card with a photograph of the mother. Whilst there, a niece of the mother identified the photograph as the mother and a sister of the mother did so as well. The grandmother then returned with a copy of the mother’s ID card and was able to confirm that the photograph with the process server was that of the mother. The process server then showed a photograph of the mother to a village policeman who identified it as that of the mother and said that she had been registered as missing but had returned to the address and was declared not missing. It seems he thought that she was probably in the United Kingdom and said that she did not have a relationship with her family. The local authority have been unable to trace the mother and has no information as to the father’s identity or whereabouts.

Remember, of course, that this mother did not want her family to know anything about the baby or to become involved. So that worked out marvellously for her. (I also dread to think how much Coventry had to pay for the Romanian equivalent of Jim Rockford to go out flashing this photograph of the mother around, including showing it to a village policeman)
The final upshot though, was that the mother was not found, and the care case thus proceeded in the absence of the mother, or a father.

What then happened was that the Court caused the Romanian authorities to be informed of the case. It took a while to get any response out of them, but once they started to respond, they got highly responsive, ultimately saying that they wanted the case transferred to Romania and were wholly opposed to a child of Romanian parents to be adopted, even where the mother herself was not opposing it.

 

the Romanian authorities have been informed as to the existence of A and the existence of these proceedings and the care plan for adoption. The care proceedings were issued on 9th August last year and the application for the placement order was on 14th October. These applications were transferred from the Coventry Family Proceedings Court to the Coventry County Court on 18th November 2013 due to the complexity of the international aspects. On 20th November her Honour Judge Watson directed that the Romanian central authority be invited to attend the next hearing on 4th December. On 4th December, although the Romanian central authority had been notified, no representatives attended but on 2nd December the Romanian Directorate for International Law and Judicial Cooperation wrote saying that the correspondence had been forwarded to the child protection directorate and that a response was awaited.
On 4th December Judge Watson invited the Romanian central authority to write to the local authority by 23rd December informing the local authority of its position concerning the baby and the substance of any representation or applications that they were intending to make to the court. A further invitation was made to the Romanian central authority to attend at the next hearing on 13th January, it being noted that the court may make such an order on that date in the absence of any representation and the court considered that sufficient notice had been given. Judge Watson also ordered that the local authority do have permission to disclose this order and other relevant documents suitably redacted to the Romanian central authority before forwarding it to the Romanian child protection directorate that a warning of the confidentiality of the court proceedings would need to be maintained until further order.
The local authority was ordered to send a copy of the order to the Romanian central authority under cover of a letter explaining that their attendance is requested at the next hearing when final orders may be made in their absence. Judge Watson ordered that the Romanian authorities should not disclose the birth of the baby to the maternal family without the permission of the court. She gave leave to the Romanian central authority to apply to discharge parts of the order.
The matter was restored to her Honour Judge Watson on 13th January. The Romanian central authority had been invited but made no representations and was not in attendance on that day. However, the court read a letter from the Romanian directorate for International Law and Judicial Cooperation and another letter from the director of the Romanian child protection department and noted that the child protection department was content not to inform the maternal family about the birth of the baby and the judicial proceedings whilst A’s best interests were considered.
The child protection department does not consider the adoption of the child as justifiable and that it seeks the return of the child to Romania. Various directions were made and the matter was transferred to Mrs Justice King to be heard in the Royal Courts of Justice in London on 17th January 2014. The Romanian authorities were invited to make representations to Mrs Justice King. It was noted that such attendance is essential if the court is to consider the Romanian authority’s opposition to the local authority’s application for care and placement orders. By paragraph 4 of the order if the Romanian authorities wish to oppose the local authority’s application for care and placement orders they are invited by the court by 16th January to file and serve a document setting out their case in detail whether questions regarding the child’s welfare are subject to determination under the United Kingdom or the Romanian law; however, the courts in England have powers of jurisdiction to determine the questions relating to the child’s welfare and any points they make in opposition to the local authority’s plans for the child, any points they wish to make in support of a plan for the child to be returned to Romania, and the plan they propose for the child’s care including how her medical needs would be met. The Romanian central authority was to be served forthwith.
The letter of 9th January which was before Judge Watson came from the Directorate of International Law and Judicial Cooperation addressed to Coventry City Council, “Please find attached letter of response from the child protection directorate concerning the child. The Romanian child protection considers that the international adoption of a child is not justified as Romanian national law provides specific and limited situations when international adoption can take place. The child protection directorate requests repatriation of the child to Romania where the local child protection agency will be available to make the necessary investigations and to adopt protective measures for the child.”
The directorate also wrote on 16th January again to the local authority, “Further to your message of 13th January, we are sending you attached the answer provided by the child protection directorate dated 15th January. With regard to the question raised by the Coventry County Court on the question of jurisdiction, it is our opinion that Article 13 of the EC council regulations number 2201 of 2003 is applicable, that the Royal Courts of Justice could also take into consideration and apply the provisions of Article 15 of Brussels II (Revised). As to the question of consent and participation by the Romanian representative at the hearing on 17th January our office cannot confirm that at this time.”
The letter that was enclosed came from the Directorate of Child Protection which is dated 15th January; “Further to your request for an opinion regarding the case of A, we believe that we should make the clarifications below. As you are aware from the information provided by the British authorities, the Romanian side has been asked to observe confidentiality about the situation of the child and the identity of the parents. It has been mentioned in our previous correspondence that there is a complete provision for Romanian local authorities to support and assume repatriation of the child considering that she is a Romanian national. However, given that the British authorities have only provided us with extremely brief information about the situation, we believe that their request dated 4th January that a series of documents should be made available by the 16th which should present a proposed plan for the child including the manner in which her medical situation would be handled and any other arguments meant to challenge the decisions made by the local authority that the child is adopted are unrealistic considering that any serious assessment must be based on documents that affect both the social background and they affect the medical condition of the child and the family environment of the natural extended family of the child in order to make a substantiated decision about setting up a measure of special protection. Under the circumstances in relation to the recent request by the British court we wish to mention that our institution upholds its opinion about the Romanian local authorities assuming the responsibility of repatriating this child to Romania and that the specialised documents will be prepared by the general directorate of social assistance for child protection from the country of domicile after the British Social Services provide us with the documents that describe the current situation. Whether a representative of the Romanian Embassy will appear on 17th January, please be advised that we cannot issue an opinion about the designation of the representative who will participate.” Then it was signed off

 

Yes, I have left out of my opening remarks that this case is going to involve Brussels II, but sadly it does. I just didn’t want to put you off reading it at the outset, apologies for my deception.
It gets worse, because then the Romanian authorities began to get cold feet about whether the mother was in fact Romanian, and that debate went on for ages and ages. Their position was that IF the baby was Romanian, then they would want the case and would oppose adoption, but in the absence of documentary proof about the mother’s nationality they wanted no part of it (and they weren’t accepting the process server’s detective work at finding family members and a policeman who confirmed that mother was from a village in Romania)

On 13th March the child protection department wrote the following: “Taking into consideration that child citizenship is still to be clarified, we would like to state that if the court would confirm the child is a Romanian citizen, then the Romanian local authorities from the county where the child’s natural family has residence would issue all the required documentation to return the child to Romania specifying also detailed measures and individual protection plan under which the child’s best interests would be protected. We would like to mention that repatriation procedure as well as the background checks are carried out by the Romanian authorities would be based on the government decision number 1443 of 2004 regarding procedures for the repatriation of unaccompanied children providing the child’s best interests would be protected. If, following the assessment made in relation to the child’s extended family or natural parents, it would be decided that the family re-integration is not an option, then a Romanian competent authority would recommend the child be placed in a foster care based on a court order. The child’s placement would be done by the panel for child protection in the county of residence thought necessary by the court depending on the evidence presented if special protection measures are necessary. Taking into consideration the child’s age, the foster care placement would be the solution to be considered by the Romanian authority as under the current Romanian law, a child under the age of two cannot be placed in a residential institution (orphanage). We would like to emphasise that for the moment the Romanian authorities have been unable to identify the child’s extended family members due to the confidentiality of this case. If the citizenship of the child and the mother are established as Romanian then the Romanian authorities will assume true responsibility for its repatriation be handling the case under Romanian laws.”
That was the final word from the Romanian authorities and the note that sets out the general picture, that letter does not give a timescale as to what would be done, when it would be done and when the child could be placed. There is a lacuna as to what actually would be done in fact and the timescale was not set out.

The Court had to consider the factual matrix to decide whether this baby was habitually resident in England, thus giving the English Court jurisdiction, and decided that she was.

I accept that it is likely that the mother and the little girl are both Romanian. I cannot say that I am one hundred per cent certain but the evidence firmly indicates that likelihood. The mother seemed to speak Romanian as her first language. She talked about Romania and said she was returning to Romania. It seems that we have located her family. I am not making a clear finding of that because all I can do is to look at the evidence before me and the mother is not here. The little girl was born here and the mother wanted her to be adopted here. There was no pressure on her to reach this conclusion. It was her conclusion and she gave her reasons. She said that she had no money to support the child; that her family did not approve of her relationship with the father, that they would disown her and they would not support her and that the father himself was not interested. She herself had concealed the pregnancy from her family and from her friend, Z. The mother has effectively abandoned A to her fate here. She wanted her to be adopted in the United Kingdom, hoping that she would find a good home.
Effectively the mother has left her daughter. Since the birth, A has been here, she has never left this country, she has been in hospital for good reasons after her birth and then when she was ill in July. She only left hospital in September when she was placed with her foster carers and she has not left their care since. She looks on them as her carers, as her family, their home is her home, she knows nothing else, she is only ten months old but she is comfortable, seemingly happy and settled in that environment. If she has a language, it is English. It is not Romanian. No doubt she is familiar with the sound of English. She may now be understanding a lot of things, I know not, but if she has a language it is English. Her culture is that of her carers. The environment in which she lives is that of her carers. She has accessed the United Kingdom’s health system. She moves around her carers’ home area with her carers. She will know their friends and her environment is that of her carers who are British, living somewhere in this country, although I am not sure where; that is where she is and that is her environment. She has had no contact with her mother since 7th June when she was still very, very small. It is clear to me that there is a distinct level of integration for this little girl in the social and family environment in this country with these carers. She has no connection from a practical day to day point of view with Romania. It is clear to me that she is habitually resident here and I make that finding.

In that sense, there is no need for me to consider Article 13 and I have jurisdiction because she is habitually resident here but if I am wrong on that, Article 13 would kick in. Where a child’s habitual residence cannot be established and jurisdiction cannot be determined, the courts of the Member State where the child is present shall have jurisdiction. I am saying that Article 8 applies, this child is habitually resident in this country and by that means I have jurisdiction
The next issue, then, was whether the appropriate venue for decisions to be made was England or Romania, applying article 15 of Brussels II

The Court decided not to transfer the proceedings to Romania (and if you are some sort of Brussels II addict, then the specific paragraphs are 44-50.

The NEXT issue was whether there should be an approach made to the extended family in Romania, and HERE for the first time is a live debate between parties to the proceedings. The Local Authority wanted to respect mother’s clear wishes, the Guardian wanted to explore the extended family so that adoption would only be the outcome if it was the last resort.

This has long been a difficult philosophical issue, and it is difficult to ever find a decision on this point that most people would agree on.

The Court here decide that it IS in the child’s interests for that exploration to be made, and place reliance on ‘nothing else will do’ (although it is quoted as ‘nothing less will do’). That, I suspect, is likely to be the conclusion of such debates in the future, unless there are compelling reasons to the contrary.

It does, as the Local Authority submitted, raise the spectre of mothers not coming to Local Authorities to relinquish where they don’t want their family involved or contacted, but going back to the bad old days with babies being left in wicker baskets outside hospitals or police stations.

I move on to the last issue before me which is should enquiries be made of the maternal family in Romania and that this would entail a breach of the mother’s confidentiality. The local authority have said that there should be no more enquiries, that it would not be in A’s best interests. It would delay the proceedings here and it would delay the making of a care order and a placement order. The guardian is of a different view and says that there should be enquiries because it would be in A’s best interests if those enquiries are made.
It is never an easy point to breach the confidentiality of a mother who has given birth in difficult circumstances and I recognise that she does not want her family to know about the child and she has given her reasons. It has been said by the local authority that if it became known by a mother in similar circumstances, and if she felt that her confidentiality would be broken, she may not seek the assistance of medical help in giving birth; she may seek “a back street abortion” or give birth secretly which would endanger the mother and the child. The reality is that each case depends on its own facts. The matter is within my discretion.
Under the Children Act my task is to consider the child’s best interests and that must be my paramount consideration. It then sets out the checklist required by section 3 as to whether I make an order or relating to the welfare and best interests of the child. Under the Adoption of Children Act 2002, section 1(2) the paramount consideration of the court must be the child’s welfare throughout his or her life and I am referred to the checklist and things that I have to consider all relating to the future welfare of the child. The care plan here is for adoption. Romania, I acknowledge, does not have the same rules for adoption and their position for placing children is different from ours. Here, recently adoption has been described as the last resort for a child when all else fails and that was said in Re B [2013] UKSC 803 or, as Lady Hale said, it is “when nothing less would do”.
It is a last resort at the end of the day because it is the curtailment of a child belonging to his or her natural family. By adoption the child legally becomes a member of another family and is incorporated into that family on an everyday basis. She would become a full member of that family legally, practically, and emotionally. It is a change of identity of lifestyle, environment, a change of everything in a child’s life. It is a cutting off for the child from her background or the knowledge of the family and the environment in which she came from and it is a cutting off in law as well. The President in the recent case of Re B indicated that it should only be done on very clear evidence and there must be proper evidence both from the local authority and from the guardian and the evidence must address all issues and must contain an analysis of the arguments for and against each option. There must be clear evidence and proper information or as much as can be garnered. All options must be considered before a care plan for adoption can be accepted, with a placement order being made or an adoption order being made.
The court has a duty to ensure that full and proper enquiries have been made of the child’s family. Herein lies the problem, the tension between the little girl’s interests and rights and those of the mother. The mother is not present because she cannot be found and she is not here to put her view and her voice cannot be heard but she made her wishes and intentions for her daughter clear. She wanted the little girl to be adopted and she wanted full confidentiality and had concealed the pregnancy. It is not known how the maternal family would react or what the consequences might be either within the family or to the mother if it became known by the family that the mother had given birth to this little girl and had effectively abandoned her in a foreign land. That we do not know. All we have is the indications by the mother that the family was disapproving of her relationship with the father and she felt that they would not support her in keeping the baby, that the father was not interested. We do not know the consequences that might arise if the family knew about it. All we know is that she wanted confidentiality for her own reasons.
Against that, the little girl has her rights and rights that should be considered before she is adopted here by her current carers. Enquiries should be made to see if she can be returned to her family, her culture, her birth environment, the country of her origins and those are her rights. Both sides, the mother and the daughter, can claim their right to Article 8 of the Human Rights which is that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of respect except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, and economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words, in a case like this, there is to be respect for the individual’s private and family life and that the court and others should not interfere with that right.
I must also remember that if the information is correct, there are other members of her family, the grandmother, and there may be a grandfather, the half-siblings, and the father himself would have rights to know about this child, to have a voice in that child’s upbringing, if only to say, “We are not interested,” but they have rights.
It is established law that if there are conflicting interests between a child and adults that after careful consideration of all the interests and consequences of any order, and the child’s interests are paramount and they prevail over others.
On the one hand, we have the mother’s position, as she set out and her wishes and her intentions for her daughter. On the other hand, we have the little girl’s interests. Very little is known about her mother or her maternal family or their circumstances and even less about the father who has not been identified. The guardian, on behalf of A, says that it is important to carry out further enquiries and investigations to see if there is a long-term family member available in Romania, if there is a possibility of direct or indirect contact in the future if she is to remain here and to be adopted; and, if she is to be adopted, more information as to her background would be useful as to her family, their background. Such information may be of value to her in the future to know who she is, to know her background and to give her some sense of identity as to where she came from. Her guardian says that eventually if she is to be adopted, she will grow up to know that she has been adopted but she needs to know before she is adopted that everything was done that should have been done before a decision is made and that will be of value to her in her adult life. The guardian accepts that if there are to be further enquiries, there must be no delay.
There was a window of opportunity in February, it has narrowed in the last few weeks and there is very little time left if those enquiries are to be made. If I allow enquiries to be made, they should be strictly time restricted. The local authority say that there is enough information for this court to proceed, that this child needs to be settled quickly, decisions should be made and there should be no more delay given that the mother’s wishes are clear.
I accept, if there is to be further investigation, that delay is an issue. Fortunately she is well placed. If she is to be adopted there will be no move and therefore she herself from a day to day point of view will remain settled until more is known and further decisions can be made but against that, the stress and strain on the carers must be huge. They love her and are committed to her and want to commit to her long term. They need certainty now or very soon from now. It is not fair on them to make them wait for ever. I bear that very much in mind because they are doing a good job and the little girl is benefiting from their care. Anxiety within the home never is good. It will or potentially could impact upon their care and that is what worries me.
I have thought about this and it is not an easy issue but I have come to a decision. I have come to the view that it would be in A’s best interests to make further enquiries in Romania about her family and for the reasons set out by the guardian but those enquiries should be strictly time limited. There should be a strict timetable as to when they should be concluded. If they are not concluded in the timescale because it has not been possible, then decisions will have to be made in this court to conclude these proceedings. I think there should be one last attempt to make further enquiries of the mother’s family and of the father’s if he can be identified and of the provision and systems for child care in the Romanian locality.

 

As I said at the outset, this was not strictly a relinquish case, because mother didn’t sign the forms, but it is on any reading a case where that was her intent, and the High Court here apply “nothing else will do” as a rationale for not making the order, delaying the proceedings and making further enquiries about family members.

Inadequate welfare evidence

 

 

This is a County Court decision (or as I have to call it now, a “Family Court” decision, ffs) originating from His Honour Judge Wildblood QC sitting in Bristol.

 

The Local Authority is not named, and one should not leap to the conclusion that it is Bristol (often County Courts deal with multiple Local Authorities). I’m not sure why they are not named, I would have named them, I would not have expected, had I been representing a Local Authority in these circumstances, to escape them being named.

 

 

Re R (A child: Inadequate Welfare Evidence) 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B101.html

 

Whichever Local Authority it was, perhaps those involved had been out of the country for a year or had no access to the internet, because this was an application for a Placement Order that took no account of Re B, Re B-S, Re G, Neath Port Talbot – in short of anything that has happened in the law relating to care proceedings and placement order applications since summer of 2013.

 

The Judge was scathing of this, and rightly so. This particular passage is telling

 

This is exactly the sort of case where linear analysis must be avoided. Since I had to explain to some what that meant (sic) during the course of this hearing, let me set out what was said by MacFarlane LJ in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

 

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

 

 

The judicial ire did not merely fall upon the Local Authority (although a lot of it did), the Guardian copped it as well

 

On paper the guardian supported the Local Authority’s position. I have great respect for G who is a very experienced guardian but I am afraid that I do say that his report involved a linear analysis (and I invited him to consider overnight a more holistic approach to the issues before the court before he gave evidence). He accepted in his oral evidence that his report ‘might not be his best piece of work’ and a reading of his report would confirm that to be the case. By the time that he gave evidence his opinion was that this case is finely balanced, that there would be no basis upon which rehabilitation to the mother could be refused if she maintains her current lifestyle and there is a realistic prospect of her doing so.

 

 

The nub of the case was that the mother of the child had had four previous children, none of whom lived with her and had sadly had long-standing alcohol difficulties. The mother said that she had brought her alcohol problems under control since November 2013 – there were three incidents where it was believed that she had consumed alcohol, and the alcohol testing suggested that she had not been drinking since January or February 2014.

 

The key issue was therefore whether mother could maintain abstinence and care for the child with support. Little surprise then that the Judge was very critical that the Local Authority had not turned their mind in their final evidence to the sort of support that might be provided to her if the child returned to her care

 

When I asked ‘Where is the written evidence from the Local Authority of the services that it would provide to the mother if Ch were to be rehabilitated to her?’ I was told that there was not any. Further, I was told that there has not been discussion between the Local Authority and the guardian about the support services that might provided. That is not good enough. Of course, evidential deficiency may be partially remedied by oral evidence at a hearing; however, where the Local Authority documentary analysis fails to consider what might be done to support the mother it means that it has ignored the requirements of proper case preparation and has engaged in analysis that is significantly lacking. Thus its own processes of analysis are deficient. The case that this Local Authority needs to read and absorb is that of Re W [2013] EWCA Civ 1227. Paragraph 101 includes the following passage from the judgment of Ryder LJ: ‘The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations’.

 

Further, oral evidence cannot provide the sort of joined up thinking that a Local Authority must be expected to conduct when deciding whether supported care by a parent is feasible. In other words, this Local Authority should have engaged in full discussion and analysis with potential agencies of support in order to formulate its care plan. That simply has not happened. I regard that evidence of services and support to be particularly important in a case where there is clear evidence of progress by the mother in relation to the core issues of ‘concern’. The guardian’s oral evidence was that ‘there is a do-able package of services that could be put in place that would sufficiently monitor the mother’s care of Ch if she maintains her current lifestyle’

 

 

The Judge was particularly sharp (and rightly so) that the key questions in the case weren’t addressed in the written evidence but seemed to have been posed for the first time by the Judge himself

 

It should not be for the judge at a final hearing to raise the following questions and create consideration of them:

 

 i) If the mother does sustain her current lifestyle, is there any reason why she should not care for her child?

 ii) Is there a realistic prospect of her maintaining her current lifestyle?;

 

iii) Is there a feasible package of support that could monitor whether the mother does sustain her current lifestyle?

 

 

[I do wonder in relation to all of this – the Guardian’s analysis was poor, there were missing elements in the social work final evidence that could be described as ‘gaps’ in the same sense that the Grand Canyon is a gap, there was no Re B-S analysis, no assessment of mother’s relationship with the child, no updating view from the expert who assessed mother in pre-proceedings…. What was going on at the Issues Resolution Hearing? Why was nobody saying this? Had anyone actually read the evidence? Had a Judge read it?  How did this case even get to final hearing when it was so flawed?   I mean, I KNOW the answers – IRH’s are not being used properly to identify the issues and assess the evidence, but these were not small flaws in details or matters that could only emerge through rigorous cross-examination]

 

 

Another issue that the Judge was critical of was the decision by the Local Authority to deal with the case in pre-proceedings (not merely pre birth, but once the baby was born) by voluntary accommodation rather than issuing of proceedings.

 

By an application made on 3rd April 2014, the local authority seeks a care order in relation to Ch who is aged 3 having been born on 24th February 2011…

 

Nine months after the Local Authority closed the case the incident occurred on 18th August 2013 which resulted in Ch being accommodated by the Local Authority. The mother was discovered in a state of drunkenness, the home was unclean, Ch was in a state of neglect and a man was present in the home whom the mother said that she had met that day. There can be no doubt whatsoever that this was no environment for a child of this age to be living, as M herself accepted in evidence; she was in no fit state to care for him and, on the evidence that is now known, had been in no fit state to care for him for a long time.

 

Rather than bring the case to the court the Local Authority then engaged in a very slow moving non-court based process for the next eight months

 

 

 

The Judge obviously did not make the Placement Order sought by the Local Authority (as originally supported by the Guardian until he was giving his oral evidence) and adjourned the case to get the proper evidence and assessments which ought to have been available from the outset.

 

I’ve included the Welfare Checklist analysis from the judgment in full, as it is illuminating

 

Ch is obviously too young to express his feelings. He enjoys his contact with his mother and, as a child who is 3 ½ years old, recognises her as his mother.

 

He needs to live within his natural family unless, as a last resort, this is not possible. It would not be possible for him to do so if M reverted to her former way of life. He would not be safe either emotionally or physically. Taking the checklist factors out of turn, he has suffered emotional and developmental harm through the mother’s vulnerabilities, lifestyle and, in particular drinking. No child of his age should have been left to live with a mother who a) Was as vulnerable as she was, b) was drinking at the level that she was drinking and c) was involved in violent relationships as she was.

 

Thus an assessment of the mother’s ability to sustain her current lifestyle is fundamental to the solution to this case. I agree with the guardian that, if the mother does sustain her current lifestyle there would be no reason to refuse rehabilitation. I agree with the guardian that on the evidence that I have heard there is a realistic prospect now of this mother sustaining her current way of life and, if she does so, there would be no reason why Ch should not be rehabilitated to the mother’s care. However given the ‘catastrophic’ consequences for Ch if a wrong decision is made within these proceedings I do not consider that there is sufficient evidence on this issue for a final conclusion to be reached given the manifest inadequacies of the evidence that has been placed before me.

 

The likely effect on Ch (throughout his life) of having ceased to be a member of the original family and become an adopted person is not analysed in the Local Authority’s documentation [See C131] or within the guardian’s report. It is an aspect of the welfare checklist that the Court of Appeal has repeatedly stressed for its importance. The President said this in Re B-S [2013] EWCA Civ 1146 in the context of an application for leave under section 47 of the 2002 Act: ‘The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child….. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appears likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

 

As to Ch’s age, sex, background and characteristics, he is a child who has suffered harm in his mother’s care. He was seriously delayed in his development when accommodated and remains a vulnerable child who was subjected to his mother’s chaotic lifestyle for too long. I do not think that one can view an adoptive course as being without its own potential difficulties given his background. He has now been in temporary foster care for 12 months. There could not be any sensible suggestion of any form of lengthy adjournment. He needs a decision to be made for him that is correct and made as soon as sensibly possible. In fact, due to the Local Authority’s delays, the case can and should be resolved within the 26 week period from initiation – i.e. by 1st October 2014.

 

I have already analysed harm. As to risk of harm – is there sufficient evidence to conclude that there is such a current risk as to deprive Ch of his otherwise right to an upbringing with his mother? The Local Authority suggests that there is such a risk but, in my opinion, it has not mustered its case adequately to justify a conclusion being reached on this issue. It has not addressed core questions within the proceedings, its welfare analysis is inadequate and it has not produced considered evidence about the services that could be provided. Having sought the opinion of an expert it has not reverted to the expert to see the extent to which the mother has responded to his suggestions at G77 to G78. When I asked: ‘Where is the evidence or analysis of the value to the child of the relationship between the mother and the child’, I was told that it is ‘implicit'; I asked to be referred to any passage within the parenting assessment where that relationship was considered and was told that it was not possible for me to be so referred. That is simply unacceptable.

 

In terms of the welfare checklist within the 1989 Act it is necessary to consider the effect on Ch of any change of circumstance. His circumstances must change. He cannot remain in temporary foster care. In my opinion that change of placement (whenever it might leave him) needs to take place as soon as possible and on the basis of a correct analysis of proper evidence. The change of placement from his temporary foster carers will be a major move for him and, whatever might be the limitations of his attachment to the foster carers, it is bound to impact on his emotional wellbeing. He needs to move once and once only. A change of circumstance so that he became an adopted child would be a major change and would have the consequences that I have already detailed. A change of circumstance which left him returning to the previous, pre-August 2013, environment provided by his mother is unthinkable. If he were to be rehabilitated to a mother who was stable and able to care for him that would be the best solution for him if possible.

 

As to the relationship that Ch has with his mother, this appears to be warm and loving. Its value to Ch is obvious: nature, law and common sense require that it be recognised that the best place for a child to live is with a natural parent unless proven and proportionate necessity otherwise demands. This mother genuinely wants to care for him and is motivated to do so. This case is not about the motivation or warmth of relationship that M offers. It raises the question of whether the mother could sustain his care without reverting to her previous lifestyle. On that issue I require further evidence; it is at least possible, on what I have heard, that she may be able to do so. However, I need further evidence of how ‘capable’ she is of doing so (to use the language of section 1(3)(f) of the 1989 Act).

 

As to the range of powers available to the court, I do not think that it would be remotely correct to express a concluded view of the outcome of the case on the inadequate evidence that I have heard. I therefore intend to exercise the power to adjourn the case for further evidence to be obtained.

 

The closing remarks of the judgment are also telling

 

 

I am releasing this case for publication on Bailii in accordance with the transparency provisions because I regard it to be in the public interest to do so. It is an example of the approach by the court where inadequate welfare evidence is provided. I hope that it shows the degree of care that the court takes and how resistant the court is to any suggestion that it should simply rubber stamp the conclusions of professional witnesses where the underlying analysis is inadequate. I would like to pay a tribute to the advocates in the case. Mr Cranfield has done his utmost to repair the inadequacies of the Local Authority’s case (and has done so with his typical skill); however the task was even beyond the reaches of that very apparent and well known skill.

 

 

 

[Of course, having looked at the new standardised social work statement model due to be rolled out in December, these sorts of vital considerations in the new statement model get the same sort of "extensive coverage" as an insy winsy teeny weeny yellow polka dot bikini, so we may be seeing a lot more judgments like this next year]

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

 

KS v Neath Port Talbot 2014

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

 

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

 

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

 

 

 

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

 

 

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

 

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

 

 

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

 

 

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

 

 

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

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

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

 

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

 

 

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

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

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

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

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

 

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

 

 

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

 

 

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

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

Decision

 

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

 

 

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

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

 

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

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

 

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

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

 

 

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

 

Jude the Apostle versus Sybil Fawlty

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

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

Go on then, appeal me, I dare you

 

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

 

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

 

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

 

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

 

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

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

THE JUDGE:  Whereabouts are they?

MR SEFTON: They are based in Poland.

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

MR SEFTON: Of course, there are practical difficulties.

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

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

THE JUDGE: Yes.

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

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

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

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

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

 

and

 

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

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

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

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

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

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

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

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

 

Succeeding in an opposed adoption

 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

AND

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

 

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

Borough of Poole v W and Another 2014

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

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

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

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

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

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

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

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

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

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

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

 

That left the Court in a very difficult position

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

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

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

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

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

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

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

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

All a matter of interpretation

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

 

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

 

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

 

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

 

 

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

 

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

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

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

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

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

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

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

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

They go on to say:

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

They add:

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

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

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

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

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

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

 

 

 

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

 

8. The hearing on 7 May 2014

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

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

 

 

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

 

It indicated three matters of concern

 

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

 

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

 

Capita

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

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

 

 

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

adoption of an 18 year old

 

Re B (2014)

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

 

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

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

 

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

 

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

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

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

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

 

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

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

 

 

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

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

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

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

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

 

 

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

 

 

 

 

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

 

 

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

 

I made an order that included the following:

 

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

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

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

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

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

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

The age issue

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

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

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

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

 

The Court did, of course, make the order

 

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

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