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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.

 

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.

 

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.

Commercial surrogacy, Iowa and an unforseen difficulty

 

The law reports today have had a distinctly American flavour, with this one being concerned with a commercial surrogacy arrangement between a French couple who moved to England, and a baby born in Iowa; and the next one up which is about Texans.

Re G and M 2014

http://www.familylaw.co.uk/articles/re-g-and-m-2014-ewhc-1561-fam

As the Court say, this is another case where a commercial surrogacy arrangement overseas throws up a complication, although this one would be wholly unexpected.

The French couple moved to the UK (relatively recently) but it was obviously a genuine move, them having bought a house, changed jobs, become contributors to the British tax system etc. They wanted a baby and provided their own genetic material to a surrogate mother in Iowa through an agency  (it will come to no surprise to regular readers that the sums of money that changed hands were authorised by the Court after the event)

The authorities in Iowa followed their processes to the letter, as did the French couple, and twins were born in due course. What the French people had not realised was that the last stage of the process in Iowa was effectively to make an adoption order for the twins in favour of this couple.

That’s a whole new ball game, because of this provision in the Adoption and Children Act 2002

The relevant parts of s 83(1) provides:

‘1) This section applies where a person who is habitually resident in the British Islands -

(b) At any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time.’

[6] The section then goes on to make various provisions including, importantly at s 83 (8), a person may be liable for a summary conviction in relation to contravention of that section. It sets out the maximum terms of summary conviction not exceeding six months, or a fine to the statutory maximum, or both

 

That section came about as a result of public policy issues, notably Mr and Mrs Kilshaw who ‘bought’ a baby on the internet when there was nothing preventing that sort of thing happening.  (One might suggest that commercial surrogacy is not all that different, but it is sufficiently different to make it legal – largely because the baby is created with genetic material from at least one of the people who will be caring for him/her)

 

This couple had not anticipated adopting this child, and had not, therefore, sought approval as adopters or to adopt from overseas. That put them in the position of having accidentally breached s83, and potentially liable for criminal charges.

[19] In reality the applicants had little option other than to undertake that legal process in Iowa. It was clearly in the children’s interests that they secured their legal position in the State of Iowa regarding both children. It also meant they fulfilled the terms of the surrogacy arrangement which required them to take all necessary steps to secure their legal relationship with the children, and to extinguish the respondent’s legal relationship and responsibilities regarding the children. It probably also assisted in them being able to secure the relevant immigration clearance to enable them to bring G and M to this jurisdiction, which they did very shortly thereafter, arriving back in this country on 21 April.

[20] However the difficulty with having undertaken those legal steps in Iowa, not only to comply with the terms of the agreement that they entered into, but also to secure the appropriate orders to ensure that M and G’s welfare needs were met whilst they were in that jurisdiction, the applicants left themselves open to potentially being in breach of s 83, namely bringing children into this jurisdiction without having gone through the required procedures having undertaken an adoption abroad.

[21] The applicants were clearly between a rock and a hard place. It is clear that from a welfare standpoint, and because of their obligations under the surrogacy agreement, the steps they took in the US were the right steps to take and were done with the best of intentions and with the children’s welfare uppermost in their minds. They had no idea that by undertaking those steps, they would potentially be in breach of s 83.

[22] It is important this issue is highlighted. Intended parents who are about to embark on similar arrangements in the US may wish to take advice in the early stages when they are selecting surrogate mothers and consider whether the State in which the child is going to be born requires the same process as was undertaken in Iowa, so they do not find themselves in breach of s 83. The difficulties that arose in this case where parties are following surrogacy arrangements and intending to come back to this jurisdiction to issue applications for parental orders need to be highlighted to the Department of Health so they can consider whether this situation was intended to be caught by the provisions of s 83 that result in a criminal offence.

[23] It is clearly an important issue to highlight but, as I shall come on to describe in a moment, in this case I am entirely satisfied the applicants undertook these steps because they felt that was the best way of securing their legal relationship with M and G in the State of Iowa. They were clearly following specialist legal advice as to what steps they should take. There is absolutely no suggestion in this case the applicants have done anything other than act in good faith and complied with all relevant authorities both in the US and here.

 

 

The Court went on to make the parental order sought by the couple

[53] Even if the requirements under s 54 are satisfied, the court has to go on to consider whether each child’s welfare needs will be met by the court making a parental order. Section 1 ACA 2002 sets out that the paramount consideration for the court is the lifelong welfare needs of each child, having regard to the welfare considerations set out in s 1(4).

[54] The court has been enormously assisted in this task by the report provided by John Power, the parental order reporter. His report is dated 31 January 2014 following his visit to the family home on 15 January of this year. He sets out in that detailed report his perceptive analysis of the welfare checklist between paras 40 – 47 which I wholly accept and endorse. He concludes his assessment with the following:

‘The applicants care for the children lovingly and have been proactive in ensuring that their needs are met. G and M demonstrate secure attachment to the intended parents. BB and BD are confident that AM entered into the surrogacy arrangement knowingly and willingly. They are confident that the amount paid was not such as to strongly influence or overpower the surrogate’s freewill in making the arrangement.

G and M’s permanent home will be with BB and BD. A parental order will benefit them greatly as it will secure G and M in law as the intended parents’ children, thus, affording them the greatest possible security. In the circumstances, I take the view that it is overwhelmingly in the interests of G and M for a parental order to be granted.’

[55] I am entirely satisfied that each child’s lifelong welfare needs can only be met by their legal relationship with the applicants being on the securest footing possible, and that can only be achieved by this court making a parental order.

 

 

Postscript – in a bizarre twist, another case CC V DD has just  been reported, with markedly similar issues  (French people adopting in England, surrogacy, Iowa, s83..  I had to read it twice to make sure it wasn’t the same judgment under a different name)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1307.html

 

 

Special Guardianship versus adoption

 

 

 
Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption.  As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

http://suesspiciousminds.com/2014/02/14/re-b-s-can-itself-be-the-significant-change-of-circumstances/

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

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

 

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

 

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.

Successful appeal against placement order

 

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

 

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

 

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

 

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

 

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

 

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

 

And the final conclusions that the Court of Appeal reached were not markedly different to that.

 

On risk

 

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

 

On a failure to properly explore the other options

 

 

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

 

 

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

 

 

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

 

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out”   (bear in mind that the LA are opposing these appeals, not bringing them)

 

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

 

 

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

 

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA.  )

Presidential press conference

 

There’s quite a lot in here, and as we know, speeches and views and opinions seem to have a habit of making their way into judgments, so it might be an advance insight.

http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/munby-press-conference-29042014.pdf

 

The one that has already made the news is the President suggesting that consideration be given to taking divorce (as in the dissolution of the marriage, not the financial issues) out of the hands of judges and giving it to Registrars. That one needs a post all on its own (probably tomorrow) – I tend to agree with quite a lot of what he says on this, and the need for proper remedies for people who are not married but have had long term relationships / periods of cohabitation.

 

Here are the other big talking points

 

1 . Not helpful to think about adversarial v inquisitorial, but as more and more cases involve litigants in person who would rather be represented, Judges are going to need to play a larger role in the conduct of proceedings

The President says that in cases where there are litigants in person, the Judges are going to have to be more inquisitorial in style, and that sitting Sphinx-like until judgment isn’t going to work. He doesn’t think we are likely to end up with a continental style inquisitorial system, but we are a long way removed from the traditional adversarial system already.

2. Doesn’t think that the cuts will adversely affect the reforms

In fact the thrust of what the President seems to be saying here are that the reforms are vital because of the cuts, and that drive towards efficiency, cost-effectiveness and reducing time taken before the Court will allow for the litigant in person cases, which he accepts take longer

 

3. Believes that there will be a tipping point for mediation, where when it is sold correctly as to the benefits, more and more people will want to take it up  [We are in an almost- crisis situation at the moment but once we get the message across it will be a very attractive option]

He was not keen on the idea of cost sanctions for failure to mediate or engage properly in mediation

 

4. Next stage of transparency will be greater access to court papers

As he rightly points out – if so much of a hearing is “Can I refer to to page B64, paragraph 6″ then a journalist sitting in Court is not able to get any real sense of what is happening, what is being referred to. He says that there are going to be proposals about this in the very near future.  He also indicates that because of the way that case numbers are coded, anyone who tries to work them out can quickly decipher that a Case Number refers to a Private Law case in Sunderland, as opposed to a Public Law case in Wolverhampton   (He is wrong about the code for Brighton being BH though – for some reason I have never fathomed, it is UQ)

 

5. He is aware of the tension between what the Government say about adoption and what the Courts say

 

For me, this was the most interesting question, and indeed answer. It is clear that on the one hand, the Courts are implementing a “nothing else will do” philosophy on adoption, and on the other the Government has a pro-adoption agenda and is measuring Local Authorities on performance and threatening to remove these functions from Councils who don’t meet what the Government have in mind. What the President says, in effect, and much more politely than my shorthand summary, is that Parliament make the statutes, not Governments, and that if Parliament disagree with how the Courts are interpreting statute, then Parliament will need to change the statute. He acknowledges the tension (explicitly referencing that the Government have talked about local councils need to get away from the idea that adoption is the last resort) and says that on the ground, for Directors of Children’s Services, “it must be slightly difficult to know exactly what they should be doing given that tension”    (something of an understatement)

 

 

Italian C-section case – the final chapter

 

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left.  It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose  (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

 

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

 

 

  • As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

 

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

 

  • The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

 

 

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

 

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.

 

 

 

 

Proportionality and harm

 

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

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1084.html

 

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.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301889/Final_Report_-_3rd_April_2014v2.pdf

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

http://www.cypnow.co.uk/cyp/news/1143367/local-authorities-underestimate-adoption-breakdowns-study-suggests

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.
Influences

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)
Conclusion

 
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.

 

 

 

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