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Ethical dilemmas and blood transfusions


This is part one of a Court of Protection decision about a very difficult case, throwing up ethical dilemmas.

Nottinghamshire Healthcare NHS Trust and J

The features are so complex that it almost reads like an exam question designed to push the law to its breaking point, but tragically involves a real person.

J is a 23 year old, detained under the Mental Health Act – he has a personality disorder.

. A symptom of his disorder is that “he engages in significant self-harm through self-laceration and bloodletting, most recently by opening his brachial artery”. As I understand it, it is not the opinion of the treating psychiatrist that he suffers from any kind of delusions or delusional disorder. His intelligence is within the range of normal and he appears (although this may require further exploration) to have capacity both to make decisions with regard to his medical treatment and also to instruct lawyers to conduct litigation on his behalf.
he “has a long history of significant and repeated self-harming behaviour. His self-harm includes self-strangulation with ligatures and plastic bags, burning himself, and self-injury, including head-butting and self-laceration. He frequently re-opens wounds to aggravate an existing injury and cause further damage and blood loss.”

J signed an advance directive, specifying that he did not want to accept blood transfusions. His parents are Jehovah’s Witnesses and it seems that he had regained that faith.

4. Another aspect of this case is that, because of some history of thrombosis, he is prescribed the anti-coagulant, Warfarin, which has the effect that when he does bleed, he bleeds more profusely than he might otherwise do. Another aspect of the case is that his parents are of the Jehovah’s Witness faith. I understand (although this may later be corrected) that for an appreciable period of time he did not himself profess that faith, but in the last few months he has apparently embraced it and now professes and adheres to the tenets of that particular faith. I have been told in counsel’s case summary that “He has stated that he now practises his religion by praying, reading the bible and reading The Watch Tower magazine. He reports that his religion is important in his life. He remains in contact with his father, who supports him in his faith.” As is widely known, a tenet of the faith of Jehovah’s Witnesses is a prohibition on receiving by transfusion blood or blood products.
5. According to counsel’s case summary, “On 1 February 2014 when in prison he seriously cut his right arm, opening his brachial artery at the antecubital fossa with a razor blade. He had significant blood loss and his haemoglobin fell to an extremely life-threatening level. He was admitted to intensive care and a blood transfusion was advised. He refused blood products on the basis of his Jehovah’s Witness faith. The treating hospital abided by his expressed wish, believing it to be capably stated.” Happily, he in fact survived that event without any blood being transfused.
The Judge looked at the advance directive and circumstances in which it was signed and concluded this

it appears to me that this is clearly an advance decision which was made with capacity and is valid within the meaning of, and for the purposes of, those provisions, and is also one which is applicable to the treatment described in the advance decision, namely a treatment which is transfusions into him of blood or primary blood components (red cells, white cells, plasma or platelets). I am therefore willing to declare on an interim basis that that written advance decision is valid and is applicable to that treatment, not withstanding that (a) his life may be at risk from the refusal of treatment, and (b) he is a patient detained under the Mental Health Acts.
I.e that J had capacity to make the decision that he did not want blood transfusions. Ordinarily, that would be that.

But, when the Mental Health Act comes into play, things become more difficult. There is the power under the MHA s63 for a hospital to provide medical treatment even where the patient does not consent – in effect overriding that objection; IF the medical treatment is for the mental disorder from which he is suffering

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering…if the treatment is given by or under the direction of the approved clinician in charge of the treatment.”
The narrowness or otherwise of s63 has been litigated before (most notably in Ian Brady’s case, where feeding him with tubes was held to be a s63 treatment, even though he rationally understood that his hunger strike would result in his death)

There appears to be clear authority, and in particular the decision of the Court of Appeal in B v Croydon Health Authority [1995] Fam 133, to the effect that the expression “medical treatment given to him for the mental disorder from which he is suffering” is wide enough to extend to medical treatment for physical conditions caused or arising as a result of the underlying mental disorder. Thus if a detained patient suffers from the mental disorder of anorexia, it may be lawful to force-feed that patient as part of “medical treatment given to him for the mental disorder from which he is suffering.” If a detained patient cuts himself as a result of a self-harming mental disorder, then it may be lawful under that section to treat and stitch up the cuts. It is little or no extension of that approach that if, as a result of the mental disorder from which he is suffering, a patient cuts himself and bleeds so profusely that he needs a blood transfusion, it is part of the “medical treatment…for the mental disorder from which he is suffering” to give a medically necessary blood transfusion. So the question arises in this tragic situation, on the particular facts of this case (he being a detained mental patient), as to the interrelation between the provisions of the Mental Capacity Act 2005 in relation to advance decisions and the power under section 63 of the Mental Health Act 1983 to give medical treatment notwithstanding the absence of a consent.
So, it appears that the hospital could legally authorise blood transfusions even though J was objecting to them and had capacity to make that decision.

But, the hospital (I think very properly) felt uncomfortable about doing that, and wanted to place the issues before the Court
13. The dilemma is very well expressed in the statement by the treating psychiatrist, who says,
“I am…aware…that because [the patient] is a detained patient under section 63 of the Mental Health Act I have a power, as his responsible clinician, to override even a capable refusal of medical treatment [viz the advance decision] where that treatment is for the consequences of his mental disorder. It is my opinion that his self-harming behaviour that gives rise to the need for blood products is a direct consequence of his mental disorder and that hence I could use section 63 powers to enforce treatment with blood products upon him despite his capacitous refusal. I have some ethical difficulty in using the Mental Health Act to override a capacitous patient’s wishes based on religious wishes and I would not choose to use my Mental Health Act powers to override his advance decision.”
14. Pausing there, it can at once be seen why I said earlier in this judgment that this case raises ethical issues, for there is the treating doctor herself saying that she professionally feels “some ethical difficulty” in overriding his advance decision even though she has a power to do so under section 63 of the Mental Health Act 1983 and even though he might otherwise die. She continues in her statement:
“However, because of the significant consequences of abiding by his advance decision, which could result in his death, I seek a declaration from the Court as to (1) whether the advance decision is valid and applicable (on taking account of the context that he is refusing life-saving treatment for self-harm which is medicated through his mental disorder) and, if so, (2) whether in coming to my view that blood products should not be enforced upon him in the light of a valid and applicable advance decision, I have correctly struck the balance between the right to freedom of religion and the Article 2 right to life of a detained patient.”


The hospital were therefore of the view that although they COULD exercise their power under s63 MHA to compel blood transfusions, they did not feel that they SHOULD.

Pausing there, a question arises as to whether the Court is the right place to make decisions about medical ethics. As Holman J points out (though in neater language than I use) – If you want law, Courts are the right place, if you want ethics you may be in the wrong place.

I must stress at once that it is never the business of a court in these sorts of situations to make any kind of ethical decision. That is a matter for doctors alone, applying such guidance, if any, as they can obtain from their professional medical bodies. All the court can do is state the applicable law and, where appropriate, apply it in the form of a legal, though not necessarily an ethical, decision.


The Court felt uncomfortable about trying to resolve this dilemma without someone speaking on behalf of J, and decided that J’s voice had to be heard before any decision could properly be made

16. The passage that I have just quoted from the statement of the psychiatrist very clearly highlights the terrible dilemma in this case. On the one hand, this young adult has made a clear advance decision, whilst apparently having capacity to do so, that, because of his religious beliefs, he utterly refuses consent and positively directs that he should not be transfused with blood or blood products. On the other hand, he is compulsorily detained, both as a prisoner and now in a psychiatric hospital, where, so far as possible and lawful, the state is under obvious duties to protect him, as the consultant psychiatrist identified in the above passage. He has a right to life under Article 2 of the European Convention on Human Rights; but, under other articles of that Convention, he has a right to freedom of religion and a right to respect for his private life, which includes his own bodily integrity.
17. I have been asked today to make an interim declaration that “it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983.” That is not a declaration which I feel equipped or am willing to make after a hearing of this kind in which I have heard representations from only one side and which is not on notice to the patient or any other person. It is of the essence of the application to the court that this is an issue of very considerable difficulty. Precisely because it is one of such difficulty, it is not one upon which the court can judicially and responsibly rule without hearing and considering so far as possible the arguments on both sides of the issue.
It will be interesting to know how part two develops.

The continuing dilemma for the court is that, unless somebody such as the Official Solicitor engages in this case, there may be no contrary argument. The present position of the patient seems to be that he utterly refuses to consent to a transfusion even if that has the effect of his dying as a result of his self-harming acts (even if those acts are not themselves done with suicidal intent). The position at the moment of the consulting psychiatrist, and therefore of the Trust, is that, notwithstanding the power under section 63, they should not in fact exercise it. Thus, the present position seems to be that if the physical restraints are removed and he is able again to cause profuse bleeding, he may die, whether he intends to bring about his death or not. If there is a contrary argument that the power under section 63 should be positively exercised in circumstances such as this, then it will be very important indeed for the court to hear it.


If I were making a prediction, it would be that the Court will decide that the hospital COULD use s63, but fall short of saying that they SHOULD. I think that the Court will probably make the declaration that the Trust seek

“it is lawful for those responsible for the medical care of the respondent to act in accordance with his written advance decision and withhold treatment by blood transfusion or with blood products in accordance with his expressed wishes notwithstanding the existence of powers under section 63 of the Mental Health Act 1983”

But Article 2, and the authorities on the article 2 right to life are probably going to play a significant role in the decision, and I think it could go the other way.

To be clear, the Court cannot MAKE the hospital perform the blood transfusions, but declining to make the declaration that they seek that they SHOULD NOT do it and honour J’s advance directive makes life very uncomfortable for them if they decide not to.

Adoption proceedings – member of extended family wishing to challenge

The Court of Appeal dealt with the appeal of a non-parent who was not given permission to oppose the making of an adoption order.


(The relationship here is a tricky one – the appellant was the mother of mum’s partner, so had no biological or familial relationship to the child, but had been caring for the child for most of the child’s life before care proceedings were issued. “Extended family” is probably as close as we are going to get in terms of an umbrella term for someone like this)

 Re G (A child) 2014


It throws up what the Court of Appeal describe as a “technical novelty” (which is a phrase I may pinch for my tombstone in years to come  – assuming that I don’t imitate Woody Allen’s assertion  “I intend to live forever – or die trying”)

 The appellant could not seek to revoke the Placement Order, since an application for adoption was already lodged.  

The appellant could not seek leave to oppose the making of the adoption order, since she was not a parent     (an application for leave is limited to “parent” under s47, and importantly “parent” is defined in the Adoption and Children Act 2002 as someone who holds parental responsibility – so a father without PR could not apply for leave to oppose the making of an adoption order)


She could apply for party status, or the Court could, knowing of her interest, make her a party of its own motion   FPR 2010, r 14.3(3) provides that:

“the court may at any time direct that (a) any other person or body be made a respondent to the proceedings; or (b) a party be removed.”


But what she really wanted was to be able to challenge the making of an order.

 Some digging and clever work by the lawyers involved reveals the answer


Adoption and Children Act 2002   (underlining mine)


S 29(3) and (4) which provide:

“(3) Where a placement order is in force—

(a) no prohibited steps order, residence order or specific issue order, and

(b) no supervision order or child assessment order,

may be made in respect of the child.

(4) Subsection (3)(a) does not apply in respect of a residence order if—

(a) an application for an adoption order has been made in respect of the child, and

(b) the residence order is applied for by a parent or guardian who has obtained the court’s leave under subsection (3) or (5) of section 47 or by any other person who has obtained the court’s leave under this subsection.



So, someone who is NOT a parent (i.e has PR) can apply for leave to make a residence order, and the Court can consider that application. Obviously the successful application for a residence order has the effect of resisting the adoption order, since the child moves from adopters to the applicant.


 The question then arises – what is the test for obtaining the Court’s leave under s29(4) to apply for a residence order ?


Unlike the statutory provisions governing an application for leave to apply to revoke a placement order (s 24) or leave to apply to oppose an adoption (s 47), s 29(4)(b) does not contain an express statutory requirement for the court to be satisfied that there has been a “change in circumstances”. Miss Meyer submits that, nevertheless, such a requirement should be read in to the statutory provision on the basis that it would seem inappropriate for a person who is neither a parent nor a guardian to face a lower requirement than the one facing a parent or guardian on the question of whether or not they are allowed back in before a court to contest either the continued existence of the placement order or any subsequent adoption application.



It proved quite problematic to resolve whether on an application under s29(4) the child’s welfare was paramount   (the Adoption and Children Act, unlike the Children Act, makes heavy weather of welfare paramountcy and this is something that the Courts have had to tackle before)


26It follows that a court is not required to afford paramount consideration to the welfare of the child when determining whether or not to grant leave to apply for a residence order under s 29. There is, however, no reason for departing from the approach described by Wilson LJ, as he then was, in Warwickshire CC v M at paragraph 29 when describing the second stage of an application for leave under s 24(3) once a change in circumstances has been established:

“…a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.”





Is there a “two-stage” test for s29(4)   (i.e change of circumstances – not welfare paramountcy, and then if that shown should the application for leave be granted balancing the welfare of the child and prospect of success)


27 Finally, in terms of the test to be applied, Miss Meyer’s submission that an applicant for leave under s 29(4) must establish, as a first stage, “a change in circumstances”, in like manner to the test facing those who apply under s 24 and s 47, is not accepted by Miss Henke. She submits that whether or not there has been a change in circumstances may be relevant in some cases, however, where, as here, the provision applies to “any other person” that class of individuals could include, for example, a natural father of a child who lacks parental responsibility. He, it is suggested, may emerge into the subsequent adoption proceedings late in the day, and have played no part in the “circumstances” which justified the making of the original placement order. Miss Henke therefore argues that there should be a one stage test within which the court will, naturally, look at the previous factual matrix and compare the current circumstances but without the formal structural need for a discrete first stage at which “a change in circumstances” has to be established.

28 There is, on this point, a danger of the court dancing on the head of a pin and considering a difference which, in reality, is without a distinction. In any application of this nature, where the applicant is not simply wishing to have a voice in the proceedings but is seeking leave to apply for a residence order, the underlying factual circumstances, and any change in those circumstances since the making of the original placement order, is likely to be of great relevance. Parliament has, however, held back from introducing an express statutory provision requiring the court to be satisfied about a change in circumstances where the application is for leave under s 29(4), in contrast to the approach taken in the other two provisions. I would therefore step back from holding that there is such a specific requirement where leave is sought under s 29(4). However, when considering whether to grant leave to apply under s 29(4), and when adopting the approach described by Wilson LJ in Warwickshire CC v M, I consider that any change in the underlying circumstances will be of great relevance both when the court assesses the prospects of success for the proposed residence application and when considering the welfare of the child.



So, the Court of Appeal say that a relative making an application under s29(4) for leave to make a residence order application when there’s an adoption application lodged, does not HAVE to show a change in circumstances since the making of a Placement Order (as a parent would) but whether there has would certainly be a relevant factor when considering the application.


That, oddly, puts the test for a father without PR wanting to challenge an adoption order as being slightly lower than for a mother or father who HAVE PR (which was Lorna Meyer QCs point earlier)



the circumstances of this appellant could have been catered for by treating her application as an application for leave to apply for a residence order under s 29(4) for the reasons I have given. If such an application were made there is no discrete requirement for the establishment of a change in circumstances, ACA 2002, s 1 does not govern the determination of the application by requiring the court to hold the child’s welfare as its paramount consideration, but the application would fall for adjudication in accordance with the approach described by Wilson LJ in Warwickshire CC v M.



Because all of this technical analysis was not available to the original judge, the Court of Appeal had to revisit the decision made not to allow the appellant to participate.


The Court considered that the appellant had not shown sufficient to pass the newly minted test for s29(4) applications   (note, however, what is said about a FATHER without parental responsibility, in relation to whether a person who does not have leave to make an application or leave to oppose could nonetheless be joined as a party)


45 Thus, when viewed from the perspective both of the prospects of success and of the child’s welfare, AR’s application for permission to apply for a residence order under ACA 2002, s 29(4) must fail.

46 In contrast to the position of a father who lacks parental responsibility, and who wishes simply to be heard as a party to a final adoption application with respect to his child, AR, as a non-relative who was, however, the primary carer for G during the first 18 months of his life, does not in my view have a sufficient interest to be joined as a respondent to the adoption application in the absence of any ability to make a substantive application in the proceedings.

47 In all the circumstances, when applying the statutory scheme to AR’s position as it is now clear the judge should have done, the outcome of the balancing exercise in respect of both s 29(4) and joinder as a party is inevitable; both applications must fail. As a result, there is no ground for overturning the outcome as determined by HHJ Edwards. I would therefore dismiss the appeal.

Step-parent adoption – telling the birth father


The High Court have just considered this issue in  A and B v P Council 2014

This is a step-parent adoption, i.e the child’s step-father seeking to become the child’s legal father, which would have the effect of severing the birth father’s legal relationship with the child. There are a raft of nationalities involved here, and the birth father’s name is on the birth certificate. The birth was recorded in Thailand, and thus it was not clear whether this gave him “parental responsibility”  [The High Court had initially decided to proceed on the assumption that he DID have PR]

The mother and step-father say that they do not have an address for the father, and he has had no contact with the child, who is now 9, for many years – in fact since just after his birth.

The issue for the Court was whether the adoption could go ahead without father being served with notice.


The Relevant Legal Framework



  • There is a measure of agreement between the parties, the Local Authority and Cafcass Legal regarding the relevant legal framework for this application.





  • A parent with parental responsibility is an automatic party to the proceedings under rule 14.1 Family Procedure Rules 2010 (FPR 2010).





  • A parent who does not have parental responsibility may be given notice of the proceedings and that person may apply to the court for party status (rule 14.3 FPR 2010).




  • It is agreed that if the father did hold parental responsibility under Thai law, that is not recognised in England and Wales for the purposes of English adoption law.





  • This is due to the operation of Article 4 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996) (hereafter referred to as the 1996 Convention).





  • Under Article 16 of the 1996 Convention parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. This is even if the State of habitual residence is a non-contracting State (Article 20).





  • Under Article 17 the exercise of parental responsibility is governed by the law of the State of the child’s habitual residence and if the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence.





  • However, when considering the scope of the 1996 Convention, Article 4 makes clear it does not apply to the establishment or contesting of a parent-child relationship, decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption or the name or forenames of the child. The combination of the Explanatory Report on the 1996 Hague Convention by Paul Lagarde (in particular paragraph 28), the revised draft practical handbook on the 1996 Convention (May 2011) (in particular paragraph 3.37) and the Practice Guide on the 1996 Convention published by the Ministry of Justice (February 2013) (in particular page 6) make clear Article 4 is to be interpreted widely and includes all aspects of the adoption process, including the placement of children for adoption.





  • It is therefore agreed by the parties that even if the father did hold parental responsibility pursuant to the operation of Article 16, by operation of Article 4 he would not be treated as a parent within the context of s 52(6) ACA 2002. Within that context the father is not treated as a father who holds parental responsibility unless he has acquired it under sections 2 or 4 Children Act 1989 (CA 1989), which this father did not.





  • The consequence is that the father in this case does not hold parental responsibility for M within the meaning of the ACA 2002, his consent to the adoption under s 47(2) ACA 2002 is not necessary and would not be required to be dispensed with under s 52 ACA 2002. He is therefore not an automatic party to the adoption application under rule 14.1 FPR 2010.





  • However, notwithstanding that an unmarried father with ‘foreign parental responsibility’ is not a father with parental responsibility for the purposes of English adoption law the provisions of rule 14.4 FPR 2010 provide as follows:




Notice of proceedings to person with foreign parental responsibility


(1) This rule applies where a child is subject to proceedings to which this Part applies

and –

(a) a parent of the child holds or is believed to hold parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom; and

(b) that parent is not otherwise required to be joined as a respondent under rule 14.3.

(2) The applicant shall give notice of the proceedings to any parent to whom the applicant believes paragraph (1) applies in any case in which a person who was a parent with parental responsibility under the 1989 Act would be a respondent to the proceedings in accordance with rule 14.3.

(3) The applicant and every respondent to the proceedings shall provide such details as they possess as to the identity and whereabouts of any parent they believe to hold parental responsibility for the child in accordance with paragraph (1) to the court officer, upon making, or responding to the application as appropriate.

(4) Where the existence of such a parent only becomes apparent to a party at a later date during the proceedings, that party must notify the court officer of those details at the earliest opportunity.

(5) Where a parent to whom paragraph (1) applies receives notice of proceedings, that parent may apply to the court to be joined as a party using the Part 18 procedure.

With that in mind the Court went on to consider the issue of father’s PR

  • I am satisfied the mother and step-father do not believe the father has parental responsibility under Thai law and there is a rational foundation for their belief for the reasons set out in the previous paragraphs. That belief is derived from a number of different sources and there is no suggestion that the mother and step father have done other than comply with all the relevant authorities both in Thailand and here.



  • In the light of that I do not consider the mandatory requirement for notice of these proceedings to the father applies as, in accordance the provisions of rule 14.4 (1) and (2) the applicant (in this case the step-father) does not believe the father holds ‘parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom’.



  • Even if the father does not hold foreign parental responsibility the court is still required to consider whether the father should be given notice of the application.



The High Court then looked at the case law about giving fathers notice of adoption proceedings (or not giving them notice, as the case may be). Most of these arise from ‘relinquished’ babies, where the mother seeks to give the child up for adoption but does not want the father to be informed (often there’s a short-lived relationship, or an abusive one, or the pregnancy has been concealed from the mother’s own family).  There are some gray areas at present as to whether these are thus ‘consensual’ adoptions (and Re B, B-S don’t apply) or whether because father hasn’t consented they are in reality ‘non-consensual adoptions” to which Re B and Re B-S  (the Court having to be satisfied that ‘nothing else will do’) apply.


[The same gray area potentially arises here, since the father was not consenting, but the mother was. The High Court don't actually resolve that gray area - not sure whether that lets the conclusion be drawn that the High Court, given they don't use 'nothing else will do' wording  means that they consider a case of THIS kind to be consensual adoption. It may not be safe to draw that conclusion, since the last paragraph indicates that having dealt with the issue of service on father not being required, the Court would go on to consider the MERITS of the application on another occasion.   Frankly, if "nothing else will do" applies to step-parent adoptions, it is hard to see how they would ever be granted.  The child is in the placement, there are other legal routes to secure parental responsibility for the step-father, how could one ever consider that 'nothing else than step-parent adoption would do'?)



  • it has long been recognised that in applications for adoption the position of the natural father who did not have parental responsibility had to be considered and a decision taken in each case whether, or not, to give him notice of the proceedings. Whether to do so should be considered on the facts of each case.





  • Re H (a child)(adoption: disclosure), Re G(a child)(adoption: disclosure) [2001] 1 FCR 726 set out that as a matter of general practice, directions should be given to inform natural fathers of such proceedings unless for good reasons the court decided it was not appropriate to do so. The issue of whether or not the father had a right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as set out in Part 1 of Schedule 1 of the Human Rights Act 1998 was important to establish. If he did then generally Article 6(1) of the Convention is engaged and there would need to be strong countervailing factors to outweigh the father’s Article 6 rights in favour of the mother’s right to private family life. Such countervailing factors may include serious domestic violence that placed the mother at serious physical risk. As the then President, Dame Elizabeth Butler Sloss, observed in Re H (ibid) at para 48 ‘There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive’. If the father does not have any Article 8 rights the provisions of Article 6 are not engaged and notice does not need to be given, unless there is a real possibility that he might make an application under the CA 1989 which the court ought to entertain.





  • In the cases where the court is being asked to exercise its power to grant exception from the rules which require a father to be given notice the previous cases establish this power should only to be exercised in ‘highly exceptional circumstances’ (per Thorpe LJ Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence) [2003] EWCA Civ 1842 para 3) or a ‘high degree of exceptionality is required’ (per Longmore LJ M v F [2011] EWCA Civ 273 para 25). This will depend on the court’s assessment of the risk of future harm. In M v F (ibid) para 3 Thorpe LJ stated ‘When evaluating the risk of future harm there can be no minimum requirement. The court’s first task is to identify the nature and extent of the harm in contemplation. The greater the harm the smaller need be the risk. Obviously, the risk of death may be very small, whereas the risk of turbulence in family relationships would need to be much higher.’ In assessing the likelihood of harm arising from notice of the proceedings the test to be applied is the test in Re H (minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 namely ‘in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.





  • There may, in reality, be little difference in the principles between these two strands of cases as a critical starting point is to establish whether or not the father has any right to family life pursuant to Article 8. It is agreed this is a question of fact and there are a number of matters for the court to consider. It has been said that the threshold for establishing family life has been set at a fairly modest level.


Applying the broad principles to the case, the Court heard representations about allegations of previous violence from the birth father to the mother



  • I have very carefully considered the important competing considerations in this case and I am very mindful of the general practice to inform natural fathers of applications such as this which fundamentally affect the status of a child. I have considered this aspect of the case in the context of rule 14.4 and, for the purposes of this analysis assumed this father does have foreign parental responsibility. So there is a mandatory requirement under the rules for him to be given notice of the proceedings.





  • I am considering this issue in the context of my finding that the father, for the reasons I have already explained, does not have any existing Article 8 rights. He is someone who has not sought to maintain his ties with M.





  • The wish of the mother and step-father for confidentiality is, in my judgment, an exceptional circumstance, on the facts of this case, justifying the court exercising its power to grant exception from the rules requiring the father to be given notice. The evidence based fears expressed by the mother regarding the father’s behaviour is founded on the father’s previous violent behaviour to her, M and her wider family which is supported by corroborative evidence. In my judgment there is a real possibility that if the father is informed of this application he could physically harm or threaten the mother or the wider maternal family. It is a possibility that cannot be ignored having regard to the extent of the father’s alleged violent behaviour towards the mother and her wider family in the past, in the context where the maternal family remain in the same home which is known to the father. On the particular facts of this case the balance, in my judgment, comes down in favour of the father not being notified about these proceedings, even if he could be located.



I am satisfied the Local Authority in this case does not need to take any further steps regarding the father for the reasons outlined above.

Secure accommodation and seventeen year olds


This is a decision of His Honour Judge Wildblood QC, sitting as a High Court judge

A County Council v B 2013


It involved a seventeen year old whose behaviour was such that the Local Authority wanted her to be placed in secure accommodation.  However, given that she was 17, that causes some problems with the statutory provisions.

This is undoubtedly an extraordinary case. It is also one where, on paper, there is every reason to have grave concern for C. The psychiatric evidence that has been prepared by Dr Yates and Dr Leonards ultimately concludes that C is of capable of detention under the Mental Health Act 1983. There are various suggestions about her state of health, including a suggestion that C may have a conduct disorder, which Dr Yates thought has increased in severity. I make no adjudication, of course, in relation to that. The anxiety about C’s vulnerability and potential for harm is entirely genuine and requires analysis of fact at a subsequent hearing. The extraordinary circumstances of this case include, however, the following: (1) C’s age; (2) the fact that she has herself had a child; (3) the fact that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; (4) the reported degree of vulnerability that she bore.


In this particular case, the Local Authority were NOT accommodating C, and would have been in some difficulties in doing so  (they could not obtain a Care Order or Interim Care Order on her, because she was over 17, voluntary accommodation becomes tricky because the grandmother who had a residence order and hence PR was objecting to C being placed in secure accommodation)

The issue therefore was whether the Court had the power, using the inherent jurisdiction, to detain C in secure accommodation.


  • The orders that were made in the X District Registry are undoubtedly orders that require the provisions of section 100 of the Children Act 1989 to be considered. By subsection (1) and (2) of that section, it is provided as follows:



“(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

Where a child is made a ward of court, custody of the child vests in the court. Therefore, an order making C a ward of court, but granting custody of her to the local authority, is, I think, inherently contradictory. Further, the provisions of paragraph 1 of the orders made in the X District Registry, by which care, custody and control were granted to the local authority, must, in the manner of their drafting, be exactly that which is intended should not be ordered by reason of section 100 of the Children Act 1989. The much more difficult points that have arisen and which have occupied my mind for much of the weekend are these: (1) whether it could be said that C was a looked after child within the terminology of the Children Act 1989 at the time of the initiation of these proceedings; (2) whether, absent an order granting care, custody and control of C to the local authority, it would be permissible for the inherent jurisdiction to be used for C to be made a ward of court, and for the court then to direct her detention in secure accommodation.


Obviously the Court CAN’T ward C in order to compel the LA to provide her with accommodation, since this is barred in the Act. In this case, the LA were willing to provide that accommodation, so the Court was not compelling them to do this.


But, COULD the Court use their inherent jurisdiction in this way?



  • The case therefore has been argued on the basis that, under the inherent jurisdiction of the court, the court can direct the detention of a minor in secure accommodation. That is a point upon which Miss Campbell has done some considerable research, and has finally persuaded me, and indeed the other advocates, that her submission on this point is correct. It is a demonstration of what skill and hard work can produce.




  • There is case law that of course needs to be considered. I have looked at the decision of Wall J in Re C [1997] 2 FLR 180. That case related to the detention of a minor in a clinic. The facts of the case were, therefore, essentially different. The learned judge however had to consider whether the clinic concerned was secure accommodation, and concluded that it was not. The headnote to the case reads as follows:




“In exercising the court’s inherent jurisdiction over minors, the test to be applied by virtue of section 1 of the Children Act 1989 was whether or not the order sought was in the minor’s best interest.  There was no doubt in the present case that the treatment offered by the clinic was appropriate to C’s needs and that detention was an essential part of the treatment and therefore that the order fulfilled that test. C’s objection to the order, though a matter to be considered, could be overridden for the same reason, particularly in view of the psychiatrist’s opinion that she was unable to weigh treatment information and accordingly lacked the capacity to give valid consent or refusal to the treatment proposed. 


The court’s powers under the inherent jurisdiction were not ousted by the statutory scheme laid down by Parliament in section 25 of the Children Act 1989 and regulation 7 of the Children (Secure accommodation) Regulations 1991, because all the evidence as to its regime demonstrated that the primary purpose of the clinic was to achieve treatment, and that the restriction of liberty was only incidental to that end and therefore that the clinic was not “secure accommodation” within the meaning of the Act and the regulations.


Accordingly, this was a proper case for the exercise of the inherent jurisdiction. In making an order under that jurisdiction the court would have regard to the scheme laid down by Parliament in the Act so as to ensure that the rights and safeguards provided for the child by section 25 were available and would extend the period of the order made at the previous hearing to a date not later than a specified date.”


Therefore, that case is one of some value on this point, but is not determinative of it. Specifically in relation to secure accommodation, Wall J said this:

“C is not a child who is, or who ever has been looked after by a local authority. She has never been in care, nor has she been provided by the local authority with accommodation within section 22(1) of the Children Act. The local authority is not funding the current placement at the clinic. That, however, is not the end of the matter. By regulation 7 of the Children (Secure Accommodation) Regulations 1991, section 25 applies to children who are accommodated by health authorities.”

He went on to consider that. He went on to say:

“The use of the words ‘application to the court under section 25… shall… be made only by…’ clearly limits the persons or bodies who may make applications for secure accommodation orders, and thus restricts the powers of the court to make such orders. It follows that if (1) the clinic is secure accommodation and (2) falls within the category of persons set out in either limb of regulation 2 of the Children (Secure Accommodation) (No 2) Regulations the inherent jurisdiction of the court is ousted and for C to be detained in a clinic, an application under section 25 of the Act will need to be made pursuant to the regulations. I have to say that I find the regulations difficult to construe. Mr Munby conducted a detailed analysis of the regulations in the skeleton argument. I do not propose to repeat that exercise in this judgment, helpful as it was. The critical question seems to me to be, is the clinic secure accommodation? If it is, then the question of the construction of the regulations and their application to the instant case must be addressed. But, if it is not, detention in the clinic is outside the statutory scheme and the major inhibition on the use of the inherent jurisdiction disappears.”


  • In the course of argument, Miss Campbell considered that point, and then went on to refer me to the case of Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and said this:



“Is there power to detain?

16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there… 

17. So the jurisdiction is clear. How should it be exercised?”

Munby J (as he then was) went on to say:

“18. Detention in the sense in which it is here being used will inevitably involve a “deprivation of liberty” as that expression is used in Article 5. Since the court is a public authority for this purpose…any exercise of its inherent jurisdiction must…be compatible with the various requirements of Article 5.”


  • The interplay between Article 5 of the European Convention and the secure accommodation provisions has been considered by the Court of Appeal in the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526. Article 5 provides, insofar as relevant, as follows:



“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.”

The term “educational supervision” has been given a broad definition within the case of Re K (to which I have already referred), and secure accommodation of the sort that arises in this case would not offend the provisions of Article 5, as long as it is demonstrated that it is for the purposes of educational supervision as defined in that case. The consideration of the Convention does not end at Article 5 however. Article 6, of course, provides the right to a fair trial. C is represented at this hearing very ably by Mr Farquharson, and there has been an open and full debate about the merits of the case and the legal jurisdiction for the application. There is no suggestion of unfairness in the trial process. Article 8 of the European Convention is also engaged. It provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I have omitted certain parts of the Convention Article where they do not bear relevance to this case.


  • The right to respect for one’s private and family life must bear with it a right not to be detained in secure accommodation. Secure accommodation can only be justified on a number of legal bases, that amongst them includes the provisions of Article 8(2). For Article 8(2) to be satisfied, the action of the public authority, here the court, must be demonstrated to be in accordance with the law; secondly, necessary for the protection of the rights and freedoms of C; and, thirdly, proportionate. I remind myself, of course, that secure accommodation involves the deprivation of liberty, and thus the liberty of the subject is engaged, and it is also one of the most draconian orders that can be made in relation to the placement of a child within the available armoury of the court. Therefore, very serious issues indeed arise under this provision, and there has to be strong and legal justification for intervention under the secure provisions.




  • The position that has ultimately been achieved at this hearing through the diligence of counsel is that the inherent jurisdiction of the High Court is theoretically limitless. In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation. I accept Miss Campbell’s submission, on reflection, that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute. But the existence of the jurisdiction to make orders detaining children under the inherent jurisdiction is now established in argument before me, and therefore I conclude, as a matter of law, that it is permissible to order that a ward of court be detained in secure accommodation. The individual facts of individual cases have to be considered, and I am not, by this decision, indicating any conclusions about whether C should be further detained in secure accommodation. That will be for another day.


This is, therefore, authority for the proposition that the inherent jurisdiction can be used to authorise the detention of a 17 year old in secure accommodation if it is not possible to achieve the same outcome using section 25 of the Children Act 1989.


I have to share my disquiet about this – not that I think that the Judge is wrong in law – the authorities cited do indeed lay those foundations, but about where this takes us.

I really am increasingly uneasy about the expansion of the inherent jurisdiction – and phrases like “the inherent jurisdiction of the High Court is theoretically limitless” don’t reduce that feeling in the slightest.  The problem is that inherent jurisdiction gets used in cases as the “get out of jail free card”  (or the reverse in this case), coming to the rescue where there is a desired result but one that can’t be achieved within the Statute.  That decision then gets cited in the future as authority for ‘theoretically limitless powers” and we keep building up these powers to do things that cause me a considerable amount of anxiety.


Don’t get me wrong – if someone in this country has to have ‘theoretically limitless power’,  I’d rather it was High Court Judges than anyone else, but I just don’t think anyone should have limitless power. Nobody.  Limits to power are what help us sleep soundly in our beds.

If the inherent jurisdiction can be used to achieve secure accommodation on someone (who let us not forget is old enough to join the army) then do we end up sidestepping the statutory requirements in s25 – the LA need to meet a rightly high hurdle to seek secure accommodation, but there is no statutory test for the use of inherent jurisdiction in this way.  Parliament set the framework for s25, and could easily, if they had wished, said that the Local Authority could seek such orders up until the young person’s 18th birthday, with any detention after that being through either the Mental Health Act or the Mental Capacity Act.


Proportionality and harm


Holman J has given judgment in an appeal, London Borough of Ealing v JM and Others 2014


The appeal is not concluded (the Judge has asked for some more information about the placement proposals and family finding) and I hesitated a bit about writing at it whilst it is still ongoing, but the judgment was published, and it does raise one interesting aspect, which I don’t think we have seen the last of.

Now that the European jurisprudence about proportionality has been echoed by our Supreme Court and Court of Appeal, the underlying context to that is that when deciding whether adoption is proportionate one has to be looking to what would happen or be likely to happen to the children at home.

In this particular case, the mother tried unsuccessfully to run a “Kenneth Williams defence”   (Infamy, infamy, they’ve all got it in for me)


  • The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a “conspiracy theory”. She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.


The part of the appeal that I am going to focus on relates to the findings of harm, and the case run by the parents that even if those findings were correct, this was not the sort of harm that justified adoption. (In effect that there are two separate thresholds – “significant harm” in the context of s31 of the Children Act,  but then the sort of significant harm which would make adoption a proportionate response).  Almost certainly what was in their mind was the finding of the original judge that the injuries to the children had been ‘relatively minor’



  • As I understand it from the judgment of the 7th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children’s nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as “a vivid account” of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate – boot mark injuries to the shoulders of her daughter.





  • The district judge herself very clearly acknowledged and recognised, as had the children’s guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7th January 2014:





“The injuries … were not very serious. They were relatively minor.”



And this is how the parents developed that argument


As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:



“This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries.” 


That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as “minor” they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.


And as you can see, Holman J, simply wasn’t convinced by that as a ground of appeal at all.   IF Re B ever gets to the European Court of Human Rights, this issue might be revisited. For the time being, crossing the threshold is sufficient, without needing a two tier significant harm test (one for orders that involve the child not being permanently separated, and one for orders that do)

Adoption breakdown research


A lot of people, including the House of Lords when they asked questions about the rate of adoption breakdown and found that there was no clear answer, have been wanting to see some good research on adoption breakdowns.

This is a piece of research on that very issue, commissioned by the Department for Education and conducted by Bristol university. I think it is solid.

The report opens by saying that there hasn’t previously been a national study on adoption disruptions – the previous studies have been with narrow subsets of children, leading to “rates of disruption having been quoted as ranging between 2% and 50%” (To paraphrase Paddy Power “I hear you” – I have heard over many years in Court, a wide variety of numbers being given as to how likely an adoptive placement is to break down, usually thirty seconds before a Jedi handwave and “the research is well known” – though not capable of ever being named)

There’s a LOT of it, and my summary isn’t going to be a substitute for reading it.

There’s a decent summary over at Children and Young People Now

The headline there relates to the difference between the prediction Local Authorities made of the chance of a placement breaking down before the age of 18 (3.4%) and that reported by surveys of adoptive parents (which was 9%)

So, is the adoption breakdown rate about 9%? Well, maybe not. [Actually, when you sit and read the report carefully, their conclusion is that adoption breakdown rates are somewhere between 2 % and 9%. Why is the number so wide-ranging? Well, ultimately because there are actually substantial variations between Local Authorities – where Erehwon has a breakdown rate of 2% and Llareggub has 9% - is the breakdown rate between the middle, or is it more accurate to say that nationally it is BETWEEN those figures?]

The research is looking at adoptions where an order has been made, and whether the placement continued until the child was 18, or ended (which is then classed as a breakdown or disruption, for whatever reason)

It looks at the previous research – Rushton 2003 which cited a breakdown rate of 20%, but that covered placements pre order, and obviously had a number where the placement ended after a very short period because the ‘fit’ wasn’t right , and Rushton and Dance 2006 (Although no lawyer actually knows the name of it or what it really says, this is the piece of research that gives the figure that has been bandied about and exaggerated over the last few years) that gave a figure of 19% – the study had been entirely of children who had been placed for adoption later in life than the norm.
An interesting aspect, to me, is the comparison the research does of 3 types of placements and their stability (frustratingly for me, there isn’t the comparison of stability of adoption v long-term foster care, which would now be extremely helpful to know)

The research says that they looked at:-


•37,314 Adoption Orders of which 565 were known to have disrupted
5,921 Special Guardianship Orders of which 121 were known to have disrupted
• 5,771 Residence Orders of which 415 were known to have disrupted
Peculiarly, although the research highlights that SGOs were anticipated to largely replace Residence Orders, the number of Residence Orders doesn’t seem to have gone down since their introduction.

I did my own number crunching on that, which worked out as a breakdown rate of 1.5% for adoptions, 2% for SGOs and 7% for residence orders.
So is THAT the breakdown rate?

Well no, it gets a bit more complicated (because the individual cases they were looking at were at different ages – to exaggerate wildly – if you imagine the residence orders were mostly dealing with teenagers and the adoptions mostly with pre-schoolers, then of course one group has had more chance to break down. Wild exaggeration, just so that you get the underlying concept, that some complicated maths has to be done to smooth out the differences)

Breakdown (or disruption) rate
The research says that over a 5 year period
•147 in 1,000 ROs would have disrupted (14.7%)

57 in 1,000 SGOs would have disrupted (5.7%)

•7 in 1,000 adoptions would have disrupted (0.7%)

And that over a five year period, the most stable form of placement was comfortably an adoptive placement.
But of course, a five year period isn’t necessarily it for adoptions – the research demonstrates that the most precarious time in an adoptive placement is in the teenage years , and that over a 12 year period the disruption rate went up to 3.2%.

The researchers suggest that by the time 1000 children who have been adopted reach the age of 18, those placements will have been disrupted or broken down for between 2 and 9% of them (i.e between 20 and 90 children – the corollary of that, obviously is that for every 1000 children placed for adoption somewhere between 910 and 980 of them will have placements that endure for their childhood)

Of those disruptions, nearly two thirds will be during the child’s secondary school years, with the average age of a child whose placement breaks down being 12 ½.

When looking at what influences a disruption, the research found that for children placed with adopters before the age of 4, only 1% of those placements had broken down. For children aged over 4 at the time of the placement, that went up to 5%. Three quarters of the children who had an adoption breakdown had been placed after the age of four.

Additionally, the more moves a child had had prior to the adoptive placement, the higher the chance of disruption. And the longer a child waited for a placement, the higher the chance of disruption – of the children whose placements had broken down, three quarters of them had waited for more than two years for a placement.


There is no real difference in terms of gender of the child as to whether a disruption is more or less likely (1.4% of all males placed had breakdowns, 1.7% of all females – a slight difference, but not statistically important – anecdotally it is mildly surprising that this is not the other way around). Nor was ethnicity a relevant factor in breakdown rates.

The reason for the child coming into care makes very little difference to the breakdown rates either.

Looking at the types of carer, the research SUGGESTS that single carers had a higher proportion of disruptions than would be predicted by pure averages, but are cautious about this because the data isn’t as full (the information about whether an adopter is married or in a civil partnership has only been collected since 2006)

The research also suggests that foster carers who go on to adopt the child don’t have (as many professionals would suspect or believe) lower disruption rates than stranger adoptions – if anything, it is slightly the other way. [The research points out that it may be more likely that foster carers who adopt are taking more damaged children than the statistical norm, that children have usually waited longer to be adopted if their foster carers adopt them and that foster carers who adopt might suffer more than stranger adopters when the LA backs off]
The percentage of adoption disruptions varied significantly between the Local Authorities sampled – from 0.7% to 7.4% (it is figure 20, page 55 of the research if you want to look at it).

Really hard, obviously, to unpick whether that is because of something that the LA’s are doing (picking adopters, supporting them, managing dramas) or whether it is that in any particular LA one has a higher proportion of older children, who wait longer in care. If it is the former, then we really want to get all of the Local Authorities learning from the best ones, because every single breakdown is a human tragedy for all involved.


•Between April 1st 2000 and 31st March 2011, 37,335 children were adopted and of these 565 were known to have disrupted post order and information was available in the database.
• Nearly two thirds of disruptions occurred during the teenage years.
• Gender and ethnicity were not associated with greater risk of disruption.
• The children whose adoptions had disrupted were significantly older at entry to care (average 3 years old) in comparison with children (average 1 year old) whose adoptions were intact. Nearly three-quarters of all the children had been abused or neglected.
• Children who had experienced a disruption also had significantly more moves whilst looked after and waited longer to be placed with their adoptive family compared with those children whose placements were intact.
• Children who were no longer living with their adoptive families were significantly more likely to have lengthier adoption processes compared with the children whose adoptions were intact. This was the case for those who entered care under the age of 4 years old and those who entered over 4 years of age.
• Three-quarters of the children who experienced a disruption were older than 4 years of age at placement with their adoptive family and a quarter were younger than 4 years of age. In comparison, 70% of children in intact placements were under the age of four.
• Children whose foster carers became their adoptive parents entered care at a similarly young age to those who were adopted by stranger adoptive parents. However, they waited on average two years before their foster placement was confirmed as an adoptive placement and were on average 5.2 years old at the time of the Adoption Order. In comparison, those adopted by strangers were only 3.8 years old at the time of the Order.
• Foster carer adoptions were not more stable than adoptions by stranger adoptive parents.
• The proportion of adoptions that disrupted varied by local authority


This is a bit that is fairly low key and probably won’t be picked up by the press reports, but I think is very important


“We asked adoptive parents whether there had ever been any difficulties with birth family contact through SMS, email or Facebook. Whilst 20% said this had been the case, many more feared that they would be facing these problems in the future”


If you wanted to find a person in the 1980s, you had to hire a private detective. Now, if you spend an hour on the net, you’ll know more about them than their own mother.

I think there are really good bits in the research dealing with how various local authorities dealt with requests for help from adopters, and some very honest and raw interviews where things that are normally unspoken were said out loud – the shame, the guilt, how hard it is to ask for help, and on the other side, how social workers can sometimes present as being very intolerant of the need for help and that the adopters took this child on and they just had to make it work. Many requests for help ended up being managed as s47 investigations, which escalated things badly.

There are some major criticisms of life story work (particularly about these books not being moved forward and age-appropriate for much older children, at the point where they really want to know more about their identity)

We began this study knowing very little about adoption disruption. To our knowledge, there had never been a funded study in the UK whose focus was on disruptions post order. The disruption rate was lower than we expected. The reasons for that became obvious when we met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance. An adoption manager who was interviewed for this study suggested that perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families we interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave. A key value150 of social work in professional practice is compassion and respect for individuals. It is probably easier to practice if there is a clear duality of victim and abuser. Who was the victim and who was the abuser was unclear in families where there was child to parent violence. Splits and conflicts between children’s social workers and post adoption social workers then emerged. It left adoptive parents feeling blamed, demoralised and unsupported. It was apparent that many had lost faith in professionals of all kinds and felt betrayed.

The research makes a number of recommendations – they cover 6 pages in the report, starting at page 284, so I won’t rehearse them, but they are well worth reading, particularly for any professional involved in adoption work.




Care proceedings involving disabilities and /or deafness

The Court of Appeal examined a case involving a father who was deaf, and overturned the Care Order and Placement Order, sending it back for rehearing    (it is something which you become painfully conscious of, when writing about a case involving a deaf person, how often the word ‘hearing’ is thrown around)


Re C (A Child) 2014


I became aware of this one a little while ago, but having been waiting for the judgment to be published.

If you ever have proceedings where one of the parents is deaf, the judgment is an absolute must-read – for social workers and for lawyers, but it also has some wider applicability, due largely to three issues.


I’ll deal with the wider applications first, and then the parts that relate specifically to parents with hearing disabilities.


Firstly, the Court of Appeal backing what Baker J said in Wiltshire v N and Others 2013   (sometimes Re A)

In which Baker J gave the following guidance when dealing with parents who suffer from a learning disability:

(a) There is duty on those acting for the parent(s) to identify their client’s need for assistance in responding to questions and giving instructions, which must be considered by representatives at the outset of their instruction.  Any need for support must be addressed at the earliest opportunity. 
(b) When this is known prior to the outset of proceedings, on issuing, local authorities should draw the issue of competence and capacity to the court’s attention. In turn, on the day following issue, the court will give directions for the appointment of a litigation friend.  The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings. 
(c) When the issue of capacity and competence is not identified at the outset, it should be addressed fully at the case management hearing.  At that hearing, those representing the parents should apply for special measures, where the case for such measures can be made out without any expert advice. Alternatively, where expert advice is necessary to identify the existence or extent of the learning difficulties, they should make an application in accordance with Part 25 of the FPR for an expert to carry out an immediate assessment of the capacity and competence of the party. 
(d) The legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required.  If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.
(e) So far as funding is concerned, there is a distinction between the cost of obtaining a report from an expert as to capacity and competence, and the cost of providing services from an intermediary.  The former will, subject to the approval of the legal aid agency, whereas the latter, as a type of interpretation service, will be borne by the Court Service.  Those representing the relevant party should address these funding issues at the earliest opportunity.  They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty’s Courts and Tribunal Service that the services of an intermediary are likely to be required.



Baker J went on to give a very critical paragraph, and one which I think ought to be regularly cited in cases where parents have any form of learning or other disability

81. So far as the wider issues are concerned, I repeat my observation at paragraph 132 of the judgment in the Kent case:

“The last thirty years have seen a radical reappraisal of the way in which people with a learning disability are treated in society. It is now recognised that they need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice.  This policy is right, not only for the individual, since it gives due respect to his or her personal autonomy and human rights, but also for society at large, since it is to the benefit of the whole community that all people are included and respected as equal members of society.  One consequence of this change in attitudes has been a wider acceptance that people with learning disability may, in many cases, with assistance, be able to bring up children successfully.  Another consequence has been the realisation that learning disability often goes undetected, with the result that persons with such disabilities are not afforded the help that they need to meet the challenges that modern life poses, particularly in certain areas of life, notably education, the workplace and the family.”


{The Court of Appeal in Re C, here, endorsed the applicability of what Baker J had said in Wiltshire and that from para 72 of that judgment until the end, it was applicable in this case. Thus, an endorsement of that paragraph}



And the second issue is on the vexed and emotive issue of timescales. Whilst Baker J in Wiltshire had said that the twenty six weeks ought to still be possible but might not be capable of being met if the disability was identified late in proceedings, the Court of Appeal go a bit further


34. Finally in terms of the list of particular matters in this case, there was an unrealistic timescale afforded to the assessment process.  It will be all too easy for courts now to be driven by the 26 week deadline by which care cases should be concluded, but if there are particular aspects of the case that indicate that the timescale for assessment simply cannot provide an effective and meaningful process because of the disabilities of one or more of the individuals involved, that would seem to me to be a reason for extending the timetable for the case by a modest degree, rather than squeezing the assessment in and taking whatever assessment is available within that timescale.  The result of that option being chosen by the court in the final directions hearing has been that the appeal now, all these months later, is being allowed by consent.

And the final issue of general applicability, is the Court of Appeal’s profound disappointment in the timescales for resolving the appeal, particular in the context of a desire now backed by Parliament for 26 weeks to be the norm


12. The appeal mounted by the father was issued some six weeks after the judge’s decision, yet here we are, some seven months after the judge gave his judgment, hearing the appeal which in the event has been resolved by consent.  This period of some 30 weeks to determine an appeal at a time when cases at first instance now must, unless there are exceptional reasons, be undertaken from start to finish within 26 weeks, is untenable.  It is not necessary or helpful for me to descend into detail in describing quite how it is that we are where we are in the timetable.  Part of the reason for the delay was delay in extending public funding for the father to mount his appeal. 


Onto the particular issues and guidance in relation to deafness, it was notable here that the father had been educated to degree level and had no difficulty in understanding concepts, it was a question of ensuring that communication was properly dealt with.


There had been no sign language interpreter when the social worker asked the parents to give section 20 consent for the child to be accommodated, and the social worker had asked the mother (who had some learning difficulties herself) to sign for father and explain the legal concepts to him, and thereafter communicate his views.


One does not have to be a rocket scientist to guess that McFarlane LJ didn’t really think that was good enough


there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act.  To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her.  Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting


The Court of Appeal also helpfully outline the difference between interpreting from a foreign language and interpreting sign language (which they highlight might be fresh information to many professionals)

18. It is crucial for professionals and those involved in the court system, in particular judges, to understand one profound difference between the ordinary need in cases where parties to the proceedings may speak a different language for there to be “translation”, and the need for a different character of professional intervention in these cases.  This need is not solely or even largely one of “translation” as would be the case in the straightforward translation of one verbal language to another; the exercise is one of “interpretation” rather than translation.  Communication between a profoundly deaf individual and professionals for the purpose of assessment and court proceedings involves a sophisticated, and to a degree bespoke, understanding of both the process of such communication and the level and character of the deaf person’s comprehension of the issues which those in the hearing population simply take as commonplace.  For a profoundly deaf person, the “commonplace” may not be readily understood or accessible simply because of their inability to be exposed to ordinary communication in the course of their everyday life.  What is required is expert and insightful analysis and support from a suitably qualified professional, and the advice this court has in the reports we have, a suitably qualified professional who is themselves deaf, at the very earliest stage.
19. Descending to some detail, it is no doubt the general understanding of those in the general population that sign language is simply sign language.  But it has been made clear to us in the papers before this court that there are differences between British Sign Language, which is, as I understand it, an ordinary form of communication, and English Supported Sign Language, which is a different and far more structured, in grammatical terms, process.  Different people from the population who have a hearing disability will use one or both or neither; they may have their own individual way of communication.

And there was another difference, the use of what is called Deaf Relay interpretation – in effect that there are almost two interpreters – one interpreting for the interpreter…   (the best way to understand it is the parallel that the Court of Appeal draw with an advocate for someone with learning disabilities)   – underlining here mine for emphasis

20. A second matter which has become plain to me, which was not something that I had understood previously, is the opportunity to use what is called Deaf Relay Interpretation.  That is not to describe the ordinary course of events where the onerous task of interpreting these matters in court proceedings is taken on by a team of two or three professionals who take it in turns to pass the baton, as it were, of interpretation in 20 minute periods one from the other.  Deaf Relay Interpretation is an entirely different process.  A relay interpreter is a deaf person who acts as an “intermediary” between the qualified sign language interpreter and the deaf person.  The purpose is for the Deaf Relay Interpreter to provide a specialist service and approach the communication with the deaf person from a deaf perspective, breaking down issues and providing, what one report we have read refers to as, “cultural brokerage”. 
21. The family courts are now more familiar in recent times with the concept of “an intermediary” being involved in cases where an individual may have learning disabilities.  What is described here by Deaf Relay Interpretation seems to me very much the same form of intervention.  In her report, Dr O’Rourke stresses the value of this process and I propose to quote briefly from three passages in her report.  She says this:

“In my view, any work undertaken with [the father] is unlikely to succeed unless Deaf professionals are involved.  To clarify this; the provision of interpreters alone is not sufficient.”

Then later:

“The use of a Deaf Relay Interpreter for formal court proceedings is recommended.  This is an individual who works with the interpreter but can adapt the communication more flexibly to meet the needs of the Deaf person.”

22. Later, in her second shorter report, Dr O’Rourke adds this:

“Interpretation is not merely a matter of word for sign equivalence; cultural brokerage is required which is far more effective if the hearing professional has some knowledge and experience of the Deaf community.”

23. Having explained those particular matters, which, it seems to me if there is a case involving an individual who has these unfortunate disabilities must be considered in every case


You will probably already be picking up on the fact that to do this


  1. For Court hearings
  2. For solicitors meetings with the client to take instructions
  3. For meetings with social workers


Is going to cost considerably more than the usual “sign-language as interpreter” model


The Court of Appeal deal with that, as best they can (but good luck to anyone trying to convince the Legal Aid Agency that they need to stump up for two people to do the interpreting rather than just one)


27. The issue of funding needs to be grappled with at the earliest stage before the case management hearing and during the case management hearing.  The difficulties in funding the sort of intervention that I have described to assist a deaf person, which are even more complicated than those facing someone who has a language imbalance with the language of the court or who has learning disabilities.  The provision of assistance for a deaf person will come from three publicly funded sources: first of all the Legal Aid Agency will be responsible for funding interpretation to assist the taking of instructions and other legally based occasions that require interpretation.  But, they do not cover the provision of interpreters in the court; that is the role of the Court Service, HMCTS.  Thirdly, the local authority are likely to be responsible for providing the appropriate interpreter during meetings between social workers and a parent and in the course of any assessment work that is undertaken.  All three of those bodies need to be appraised of the particular needs of the particular party at the earliest opportunity, partly as a matter of good practice but also partly because the cost of the sort of intervention that I have described is likely to be higher than simply providing someone to translate the language of one party to another, and so approval for funding at the higher level is likely to be required, certainly by the Legal Aid Agency and the Court Service.  The sooner the application is made and more generally, the more readily those agencies understand that these cases are different from simply providing a translator and they may need a higher level of funding to be approved, the better.  Going back to Baker J’s guidance, he stresses that the importance of addressing the funding issues at the earliest opportunity cannot be underestimated.




The Court of Appeal stress that it is incumbent on both the LA AND the parents representatives to bring the issue of hearing impairment to the Court’s attention at the very outset.


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