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Removal of a child from prospective adopter


I have written about a few of these cases since Holman J’s decision in December 2014, but this one is rather out of the ordinary.


RY v Southend Borough Council 2015


Hayden J was dealing with two applications. The first was an application by RY, an approved adopter, to adopt a child who is about 2 1/2, a little girl named SL.  The second was the application by the Local Authority  (Southend) to remove the child from RY’s care, under section 35 of the Adoption and Children Act 2002.

Cases about section 35 are rather rare, and this one raises some unusual issues.

First things first, what does s35 say?


“35 Return of child in other cases

(2) Where a child is placed for adoption by an adoption agency, and the agency –

(a) is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.

(5) Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order (including a Scottish or Northern Irish adoption order), special guardianship order or residence order, or for leave to apply for a special guardianship order or residence order, was made in respect of the child, and

(c) the application (and, in a case where leave is given on an application to apply for a special guardianship order or residence order, the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders”.

In plain English, where a Local Authority have placed for a child for adoption, if they ask for the child back, the adopter must hand the child back within 7 days.  UNLESS the adopter has already made an application to Court for adoption, or a Special Guardianship Order or a residence order (Child Arrangements Order), in which case it is up to the Court what happens.

In this case, RY had lodged her application to adopt SL BEFORE the LA asked her to hand the child back, so it was for the Court to decide.

By way of important background, SL was a very ill child.

  1. At birth SL was pale, floppy and had no respiratory effort or heart rate and required intensive resuscitation. Her first gasp was not until 20 minutes into life. Dr. Daniel Mattison, Consultant Paediatrician, identifies that SL had experienced hypoxic-ischaemic encephalopathy. This can result in a wide spectrum of disability and in SL’s case she has been left with a raft of problems. Firstly, quadriplegic cerebral palsy, which means that she has impaired movement and stiffness of all her limbs as a direct result of brain damage to the parts of the brain involved in movement, tone and posture.
  2. Secondly, she has global developmental impairment. Thirdly, she has gastro-oesophageal reflux disease. That is a condition where the stomach contents pass into the oesophagus causing symptoms. The stomach contents are acidic so the symptoms include pain from the acidic contents coming into contact with the oesophagus and the throat. They also include vomiting, feeding difficulties and respiratory problems if the stomach contents irritate the top of the windpipe or if small amounts enter the lungs. Gastro-oesophageal reflux disease is more common and may be more severe in children with severe neuro-disability like SL.
  3. Finally, Dr. Mattison considers that there is visual impairment as a result of the deprivation of blood and oxygen to those parts of the brain involved in vision.

One can see that absolutely anyone would have faced challenges in caring for SL and meeting her needs.

What the Judge found, by careful consideration of the facts, was that the matching process of RY and SL was optimistic.

RY had some considerable issues of her own, having been diagnosed with Ehler-Danloss syndrome, occasionally needing to feed herself through a gastrostomy tube and being in a power chair needing to use hoists to move herself out of the chair.  She also stated that she had been diagnosed with Asperger’s Syndrome when she was 19.

None of that, of course, means that she is excluded from being a carer for a child, or from being an adopter, but it does mean that there were medical issues that needed some careful consideration in the assessment and matching process.

The fact that the assessment process identified that there had been views that RY’s physical problems were emotional or psychological in nature, at the very least ought to have meant that the adopter’s medical records would have been needed to be seen and commented on by a medically qualified professional.

I am not myself at all clear as to why that wasn’t the case.


12…the assessment report more generally – poses a number of questions. Most importantly, it does not address RY’s capacity physically to parent a disabled youngster as the child got older and heavier. It also has to be said that the possibility that RY’s health difficulties might have a psychological component were evident. It is easy, of course, to be wise with the benefit of hindsight, but nonetheless it seems to me that the enquiries made into RY’s physical and mental health were less than satisfactory.

  1. A number of reports were requested, including one from RY’s general practitioner and rheumatologist, but the nature of that enquiry appears to have been very limited and as RY on her own account has had very little recent contact with either in recent years, it is not surprising that little constructive information was forthcoming.
  2. Ms. Frances Heaton QC and Mr. Shaun Spencer, who appear on behalf of Southend Borough Council, absorb this criticism without demure. In their closing submissions they state as follows: ^

    “With regard to its own failure to consider these records, the adoption agency is cognisant of the fact that although not signposted in the regulations, a review of RY’s medical records is likely to have been beneficial during the adoption process”.

  3. They continue:

    “Where an adoption agency has referred a proposed placement to the adoption panel, the panel must consider the proposed placement and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter pursuant to regulation 32(1) of the Adoption Act Regulations 2005.

    In considering what recommendation to make the panel, (1), must have regard to the statutory duties imposed on the agency; (2), must consider and take into account all information and reports ^ passage of it; (3), may request the agency to obtain any other relevant information which the Panel considers necessary; and (4), may obtain legal advice as it considers necessary in relation to the case. Thereafter, in coming to a decision about whether a child should be placed for adoption with a particular prospective adopter, the agency decision maker must take into account the recommendation of the adoption panel and have regard to the child’s continuing welfare, pursuant to regulation 34(4) of the Adoption Act Regulations 2005″.

  • 16.Ms. Heaton and Mr. Spencer also identified the most recent Department of Education Statutory Guidance on Adoption, July 2013, drawing my attention particularly to para.4.15, which states:


      1. “Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health. The medical adviser should explain and interpret health information from the prospective adopter, their GP, and consultants if relevant, to facilitate panel discussion. The opinion of the prospective adopter’s GP and the agency’s medical adviser about the health status of the prospective adopter needs to be given sufficient weight by adoption panels and agency decision-makers. Mild chronic conditions are unlikely to preclude people from adopting, provided that the condition does not place the child at risk through an inability to protect the child from commonplace hazards or limit them in providing children with a range of beneficial experiences and opportunities. More severe conditions must raise a question about the suitability of a prospective adopter, but each case will have to be considered on its own facts …”



That seems to me very clear that an adoption medical of the prospective adopter would be required and that in a case where medical issues arise, the records would be needed.


This next part, for my mind, is the most worrying aspect of the case  – that these important aspects had not been properly considered because of the pressures on Southend (and one assumes other Local Authorities) to move adoptions through the system quickly to satisfy the Government driven statistics. But even more seriously, that where a Local Authority does not properly satisfy the Government as to performance, there are ‘penalties’

I have to be candid, I do work for a Local Authority. I don’t know about penalties for failure to meet the thoughts that Central Government have about performance (and frankly I wouldn’t know how to find out). The common-sense reading of this portion is that there are financial implications for a Local Authority who doesn’t get their adoptions through as quickly as Central Government thinks that they should.  Perhaps that is right, in which case it would be very worrying.  Perhaps someone has got the wrong end of the stick here.

  1. Counsel seek to explain the deficiencies of this agency’s process in these terms, they state:

    “The agency appreciates the strength of an argument that it failed to have sufficient regard to the matters required of it both by the regulations and the statutory guidance. In the context of that argument, the court understands the pressures on agencies quickly to match children with approved adopters as a result of government measures”.

  2. Ms. Heaton and Mr. Spencer say:

    “It is a reality of the situation that adoption agencies are being judged and measured by government departments on the speed of time taken to match children, poor performance leads to penalties”.

  3. They conclude:

    “This adoption agency recognises that these pressures may have resulted in proper scrutiny not being fully implemented in this case. I am offered reassurance that the agency recognises that a request to consider our wide medical records would have been beneficial to the matching process. I have been told that they intend to address this failing for the future by ensuring that the agency is more ready to be resistant to pressures and to identify at an early stage those cases which it considers to be exceptional where a ‘longer matching process is required’.”


The Judge was also perturbed about this :-


  1. I am not in any way in any position to evaluate the explanation proffered in the authority’s fulsome explanation. I was not, for example, aware that government departments were subjected to penalties where there had been too much delay in the time taken to match children, I confine myself entirely to observing what is little more than a statement of that which should be obvious.
  2. Children like SL are profoundly vulnerable. Social services and society more generally must be sedulous in its protection of them. The fact that there may be fewer welfare options available for such children must never mean the criteria for matching carers to them can ever be compromised. On the contrary, the obligations should be seen as even more rigorous. The matching of RY to SL was undoubtedly ambitious.



In any event, things became more serious, because what was asserted was that RY’s care was not merely deficient but actually harmful and indeed that the care of SL had reached the point where significant harm had been caused.

There were many issues in this regard, and the Judge was also critical that the document provided to RY that set out what portions of parental responsibility she was allowed to exercise and what she was not was a stock document and was ambiguous


  1. What is contemplated here is the granting of some but not all parental rights. The focus is on the child with the objective of permitting the prospective adopter to take day-to-day decisions in the sphere of health, education, religion, holidays and social activities. Here this local authority, in common with many others, I am told, issued a standardised pro forma document.
  2. In relation to health issues, it permitted RY to consent to emergency medical treatment. It did not permit her to consent to treatment including operations that require anaesthetic. It did permit her to take decisions in relation to any prophylactic treatment, including immunisations, decisions in relation to involvement in counselling or therapeutic services, agreement to school medical appointments and decisions in relation to dental treatment. It also provided for her to have decision making responsibility across a range of issues relating to education, day-care, religion, holidays and contact, had that been relevant. I need not look at those wider issues and I concentrate entirely, because it is in focus here, on the provisions relating to health. I have, to say the least, been greatly exercised by them. They are not to my mind a model of pellucid clarity.
  3. There has been much confusion by the professionals as to what the scope and ambit of RY’s parental responsibility powers in fact were. Having read the document I am not surprised. This document, particularly if it is, as I am told, issued widely, really requires refinement. Again I am reassured that Ms. Heaton has this in her sights. She submits that the adoption agency recognises that on reflection and with the benefit of hindsight, (a recurrent phrase) the use of this local pro forma document was not suited to the facts of this case. It is now, she says, recognised that what was required – and is likely to be required in cases such as this concerning any child with complex care needs – is “a bespoke s.25 parental responsibility document tailored to the individual circumstances and needs of the child being placed.”
  4. She goes on to offer the reassurance that in the light of this acknowledgement this Adoption Agency intends to review its own practices and procedures in relation to the identification of appropriate restriction on parental responsibility and to introduce bespoke PR documents in appropriate cases. It also intends to raise the issue with the British Association of Adoption and Fostering so that other adoption agencies may benefit from learning from the experience of this case. I would add to that my own view that the standardised document is itself lacking in clarity. The first two requirements permitting consent for emergency treatment and refusing to bestow consent to treatment including operations are not immediately capable of easy reconciliation and generate, to my mind, inevitable confusion. As I have said, they require some refinement though, of course, I recognise, in many cases, issues such as this will simply not arise.



The crux of this case was as to how RY behaved whilst SL was in hospital, which sadly given SL’s considerable health needs was something that happened often and would be likely to happen in the future. It was asserted that she was obstructive about the child’s feeding, resistant to medical advice, over-reporting of medical concerns, requested sedation for the child, adminstered oxygen when she was not trained to do so and discharged the child against medical advice.


  1. The local authority’s schedule posits six findings and four supplemental findings. The first is that during SL’s hospital admission, which commenced on 26 September 2014, RY repeatedly refused nursing observations such as taking blood pressure or temperature. The second is that RY repeatedly refused to allow medical advice in relation to SL’s dietetic requirements. The third is that RY repeatedly stopped or refused medication and treatments. The fourth is that RY demonstrated an inability consistently to accept medical advice. The fifth is that RY repeatedly requested treatments of her own motion or insists on treatment methods. And the sixth is that due to RY’s anxieties, she tends to focus her attention on unnecessary medical procedures or extreme outcomes.
  2. The four additions are that RY suctioned SL unnecessarily too vigorously and in an inappropriate manner. Secondly, that she repeatedly requested sedation medication for SL despite being told by at least two health professionals, Dr. Court and Sally Deever, that such may compromise her breathing. The third is that RY gave SL oxygen unnecessarily and inappropriately when she was not trained to do. And fourth, that SL suffered harm in RY’s care and was likely to do so if she were to return to her care. That last finding being essentially a composite of the earlier allegations.
  3. As I have already said, it is really a very striking feature of this case that so much of what is set out in that schedule is factually uncontentious. It is the gloss or interpretation that is put on it that has become the focus of disagreement during this case. In, for example, the first finding, namely that during SL’s hospital admission in September 2014 RY repeatedly refused nursing observations, there is agreement that she did indeed make such refusals.



Most of the factual matters, being supported by the medical reports provided by the hospital treating SL, were not in dispute. What was disputed was the interpretation to be placed on them, or whether they amounted to harmful behaviour rather than just genuine concern about a child who was undoubtedly very unwell.

  1. RY told me that she derived some satisfaction from the preparation of the food for her daughter that it was instinctive to her to want to do that and that I certainly understand, but as time passed it became all too clear that this preferred method of nutrition not only was unsatisfactory, it was falling manifestly and demonstrably short of meeting SL’s needs. The doctors and nursing staff and dieticians were plainly highly agitated that SL should have good quality calorific and nutritional food, particularly when recovering from her operation, and RY undoubtedly resisted it in the face of her own obviously inadequate regime long after it would have become obvious to the reasonable carer that this was simply not meeting this little girl’s needs.
  2. So obvious was it that, in circumstances which I really find to be truly extraordinary, the hospital required RY to sign a waiver abdicating their responsibility to her for providing SL’s proper nutrition. What I find so deeply alarming is that in this instance and in the other instance that I have just looked at, that is to say the failure to let nurses take temperature, blood pressure, routine tests, et cetera, how it was that RY’s will prevailed to the extent it did. I can only assume that her behaviour was as described so bizarre that it caused confusion in the ward and led to poor clinical judgments to be taken contrary to SL’s interests.
  3. Ms. Heaton put to RY directly on this point, “In those circumstances, how could RY be said to be putting SL’s interests first?” And to that, in my judgment, RY had no satisfactory answer. I simply do not believe that she has understood or is now able fully to understand why it was she behaves in that way, but there is no satisfactory explanation when properly analysed for this failure to meet that most basic of SL’s needs, her need for nutrition.
  4. As I have said, I do not find it necessary to work through each of the many examples contended for in the Scott Schedule of, for example, RY’s refusing medication and treatments, chiefly again because it is not disputed. One such example which stood out to me in the evidence was RY’s refusal to permit SL to take oramorph when moved onto the ward when in the intensive care unit. Oramorph, I was told, is a morphine-based medicine the objective of which was to downscale gradually the pain relief from the higher dosage that she hitherto had been receiving.
  5. RY told the hospital – and indeed told me – as Ms. Walker emphasises in her closing submissions, that SL “didn’t need anything for break-through pain”. It is one of a number of responses that causes Ms. Walker to comment on what she contends to be RY’s arrogance towards medical staff for how, says Ms. Walker, could RY possibly have been in a position to gainsay the medical advice and to assert from the basis of no medical knowledge at all and in a highly specialised area of medicine that this little girl did not need anything for break-through pain. Once again it was RY’s wish and not that of the doctors that prevailed. I agree with Ms. Walker that the evidence in relation to this can properly be described, as she does, “overwhelming”.
  6. I would also like to highlight the incident set out in the unchallenged statement of Ms. Leanne Mulholland, who is a Senior Sister at the Paediatric Emergency Department at the Royal Manchester Children’s Hospital. In her statement of 7 May 2015, Ms. Mulholland tells me that she was the nurse in charge on the early shift of 14 July. Four areas of concern were handed over to her from the night staff.
  7. Firstly, there was the transfer of SL to the Paediatric Emergency Department in RY’s car directly contrary to the advice of the paramedic. A process which in and of itself caused a significant delay in admission as Mr. Unwin emphasises as a convenient forensic illustration of harm. Secondly, on arrival there was concern that RY simply refused initially to allow a full respiratory assessment to be performed. I am still unclear why that was, but it was ultimately completed as it manifestly needed to be. There was reported to Sister Mulholland a concern about the ambit of parental responsibility, which I have already looked at.
  8. Then there was the final area of concern; active discharge from the hospital against medical advice. That RY should do this at all, that she should feel knowledgeable and empowered enough to do it, even before she had been granted the Adoption Order and full parental responsibility, is profoundly troubling. This episode illustrates to my mind that RY had gone beyond behaviour that was merely capable of being categorised as bizarre but had, in truth, spiralled out of control. I find her judgment and her behaviour, was irrational, unstable and she had become, I am truly sad to say, a real risk to SL



There really was no way that Hayden J would have been able to grant RY’s application for adoption. He is very kind in his conclusions


  1. Ultimately, balancing what I have sought to identify as some really clear, captivating and obvious strengths that RY has and balancing those against the harm I have just outlined in summary, does not present to me a remotely delicate balance in determining the future for SL. The way ahead for her, whatever it may hold, is clear. The risk RY presents of harm or significant harm to SL is so real and serious and the potential consequences so grave that I find them to be wholly inimical to her welfare. It points clearly and determinatively in support of the local authority’s application under s.35(2) in effect refusing return to RY’s care. It follows, therefore, that I dismiss her application for adoption.
  2. In my lay view, RY has plainly some real emotional and psychological issues to address. I hope she is able to do so. I hope her family are able to help her to do so. In the meantime, it would not be safe, in my judgment, for her to be involved in the care of any child or vulnerable adult with disabilities.





Hayden J recognised that this was a case, where the system had not worked as it should and that a very vulnerable child had been exposed to more harm in the adoptive placement that had been intended to meet her needs, and there was thus a public interest in the case being reported


Cases of this kind generate real public concern and rightly so. In the past a judgment such as this would not have entered the public domain. It is hardly surprising therefore that public understanding of the Family Court process and confidence in it’s system had begun to erode. The Practice Guidance of the 16th January 2014 was intended to and has achieved immediate and significant change in practice in relation to publication of judgments in the Family Courts and the Court of Protection. In April 2013 Sir James Munby P issued a statement, View From the President’s Chambers: The Process of Reform, [2013] Fam Law 548 in which he identified transparency as one of three central strands of reform which the Family Justice System is currently undergoing. This is an ongoing process in which a balance between freedom of expression, protected by Article 10 ECHR and the rights of vulnerable children to privacy and security, protected by Article 8 is often a delicate one.


The fundamental argument was as to whether RY’s name should be reported.  Unlike a case where identification of a parent who has harmed the child inextricably identifies the child as well, and thus should not happen, here RY and SL did not share a name and identifying RY would not also identify SL.

The Court had come very close to identifying RY in the judgment, and the single factor which mitigated against it was RY’s intention to seek help for her own problems.

  1. I have already expressed my clear view that the link between publication of the identity of the carer and any adverse impact upon the child subject to these proceedings is tenuous. However, I think RY’s entitlement to the opportunity of therapeutic support, in private, which gives the process much greater prospects of success is so manifestly in both her own interests and those of society more widely that it weighs heavily in the parallel analysis of competing rights and interests in which the starting point is ‘presumptive parity’.
  2. In my judgement the need to protect RY’s privacy while she embarks on what I have no doubt will be a difficult and challenging therapeutic process is to recognise an important aspect of her own autonomy and dignity



That does obviously raise the prospect that in a similar case, where the adopter’s conduct was not as a result of psychological difficulties or there was not a recognition of those difficulties and an intention to seek help, that an adopter who harmed the child could be publicly named in a judgment. There would be reasonable arguments that this would be the right thing to do.

Revocation of adoption order

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


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


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


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

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


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



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


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


PK v Mr and Mrs K 2015


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


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


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


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



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



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



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



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


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

Local Authority lawyers should grow a pair

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


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


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

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


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


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

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

Flag is going back in the cupboard now.


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


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


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


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


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


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


Well, where to start?

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

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

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

Nor have social workers.


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

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


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


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

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



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


The first is this one:-


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


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


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

para [215]:

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


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

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


The second omission is of course,

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


I have set out before, here, what the Court do and do not say in Re R


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


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


That is encapsulated by this passage

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


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


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


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

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

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

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

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


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


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


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

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

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

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

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

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


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

Let’s look at what the Court of Appeal said

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


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

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


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


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


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



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


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



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

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


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


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

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


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



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

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






Oedipus Wrecks

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


Re B v C (Surrogacy : Adoption) 2015


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


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


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


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


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


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


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


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


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



With me so far?


Here is the tricky part.


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


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


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

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


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


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



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


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


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


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


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


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


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



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


(2) The steps are—



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

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

(c) offering to find a child for adoption,

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

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

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

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

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

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




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

(4) The condition is that—

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

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


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



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


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


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


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


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


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



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


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


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


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



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



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



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



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



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



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


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



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



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


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





Flawed placement order application


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


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


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


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

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


Still with me? Yes, I thought so.


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


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

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

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


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


Again, I will pick out one devastating line


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


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



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

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


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


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

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


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

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

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


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

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

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

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

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

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

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

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


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

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

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


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

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

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

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

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

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


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





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

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

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

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

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

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

The conclusion

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

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

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

A tale of One Telegraph – follow up

I said that I would look out for the transcript of the judgment that Mr Booker was reporting about

The bare facts that we knew were – His Honour Judge Jones, two boys, a bruise, and an older child, and Placement Orders being made.

This case here, ticks all of those boxes

Re A (a child) 2014

I don’t want to get stuck into the facts too much, because there’s no way to be SURE that it is the same case that Mr Booker was writing about. You may recall that the central complaint in Mr Booker’s piece was that the parents weren’t able to fight the case and were not allowed into Court.

From Re A, the Court say this:-


  1. The parties to the applications and their legal representations are as follows:
  • the Local Authority, X County Council brings both applications in respect of the children and are represented today by Miss Beattie;
  • the children’s mother L is represented today by Miss Erwood. The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment. That decision is perfectly understandable so far as the Court is concerned;
  • The children’s father is CC. He shares parental responsibility for the children. He is represented by Mr Blythin;
  • The children are represented by their Guardian Miss Siân Wilson who has been present today and is represented by their solicitor Miss Debbie Owens.


A parent deciding that they don’t want to come in and hear the judgment is not that uncommon, and is an utterly different thing to being told they aren’t allowed to come in.

It can’t be an easy thing to listen to, particularly where (as these parents did) they have decided not to fight the case and they know that the outcome is going to be something that will break their heart.

One of Mr Booker’s complaints is that the parents were told that there was no prospect of appeal. That would be right in this case, because the parents decided not to oppose the case. It would be an extremely unlikely scenario that a person can decide not to fight a case and then the same day have legal grounds to appeal the decision.

It is always difficult with a Mr Booker story to be sure when you actually have the judgment that matches up with his case, and in his defence, it could be that this is another case entirely.

There’s nothing improper about the judgment in Re A – it considers everything that needs to be looked at, it is not a rubber stamp, it gives proper regard to the evidence and the legal tests and it is as kind as a Judge can be in those difficult circumstances.

IF this is the case that Mr Booker complains of, there is absolutely nothing in it that warrants the level of complaint he was making.

They had legal representation, they were entitled to go into the Court, they were entitled to instruct their lawyers to fight the case. By the sounds of it, they were given advice that the chances of doing so successfully were very poor and they decided not to put themselves through that ordeal. Perhaps they regretted it almost immediately. Perhaps they feel in hindsight that they didn’t feel that they had a choice. Perhaps they wish that they had fought the case and that they will never know now what might have happened. But they had the choice to make, and they made that choice with legal advice.

Perhaps (and I really don’t want to besmirch these particular lawyers, it is more of a general complaint) lawyers don’t always make it completely clear enough to parents that the lawyer is there to advise them, but that the parent can refuse to take that advice. They can tell the lawyer to fight on, and the lawyer’s job then is to fearlessly represent that client without fear or favour.  You can tell your lawyer, thanks, but not thanks.

Unlike a boxing cornerman, your lawyer can’t throw in the towel on your behalf, even if they think you will take a horrible beating. Only you can throw the towel in.

[One can accept of course that someone can legitimately hold a view that adoption is wrong in all cases and that any case involving adoption is thus wrong and unfair. If that’s your view, then like Ian of Forced Adoption, you’re entitled to make complaint about all and any cases. But if you are instead arguing that in this particular case, the parents were robbed of a fair hearing, and denied due process, there’s nothing to support that assertion]

If it isn’t the same case (and he is able quite easily to establish the date of the final hearing and who was representing the parents to show otherwise) then we will have to wait and see for when the real case he was writing about shows up.


There ARE things that go wrong in family law, there are cases where parents are done great injustice (like the HH Judge Dodds case that Mr Booker also writes about) and it is a good thing that there are people to make those injustices known. It is only by dragging them into the light that things will get better.  But we do also have to be responsible in reporting and be sure that if we are shouting that there’s a wolf that what you are seeing is really a wolf.


Objection to gay adopters

This is an interesting news item from PinkNews  (rather than Pink Tape for once)

Allowing same sex couples to adopt was highly controversial and politicised – almost the entire Parliamentary debate about the 2002 Adoption and Children Act was taken up by this sole issue. We have even had a Children’s Minister within this Parliament who is staunchly opposed to it. But it has been law now for 13 years and same sex couples can legally adopt.

This news item relates to a Magistrate hearing a set of care proceedings, and remarking to his colleagues in the retiring room that he would prefer the child to go back to mum and dad than go to a gay adopter.

[Of course, any Magistrate hearing a family case ought to prefer that a child live with birth parents if possible, rather than adopters, but the sexuality of the adopters shouldn’t really be a factor]

The Magistrate was suspended and sent on various awareness courses – I think with mixed success, given what he has to say about the situation now

There is tremendous pressure to keep quiet and go along with what is seen to be politically correct.

“Everyone else seems to be allowed to stand up for their beliefs except for Christians.

“I think there is something about a man, a woman and a baby, that it’s natural and therefore the others are not. That is the comment that I made.

“Therefore, since my task as a magistrate is to do the best for the child, my feeling was, quite reasonably, that a man and a woman would be better.”


[Also the fact that he is getting advice from an anti-gay pressure group suggest to me that maybe his diversity training to re-educate him hasn’t completely worked]


It clearly isn’t right for someone with such views to sit on a family case where the issue arises – but is it okay for him to do other cases but recuse himself from any case that involves same sex adopters, or indeed parents?  Or do attitudes of this kind end up colouring your approach on other matters?

For example, might someone with this sort of belief system also take an overly harsh view of a mother who has had an abortion, if the Magistrate holds the view that abortion (though legal) is morally wrong?

It will not be a massive surprise to readers that the comments section on this piece in Pink News reads rather differently to the comments section on the same basic story in the Mail.

I’ve never been in a position of having to give a judgment, and am never likely to be – though if by some clerical error I find myself in the Supreme Court I’m going to choose to be called Lord Vader. I imagine that you must bring something of yourself to the process – Judges aren’t robots – they have human experiences and thoughts of their own. The key is to be able to identify for yourself if you are putting too much weight on feelings rather than facts and evidence and legal principles.


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