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Here comes my nineteenth nervous (adoption) breakdown

A quirky little case, considering what happens when an adoptive placement breaks down to the point where all concerned would really like to effectively delete the adoption order.

 Re W (2013)

 http://www.familylawweek.co.uk/site.aspx?i=ed114972

 

The child had obviously been subject to previous care proceedings, a Placement Order made and in due course an adoption order made. The adoptive placement with Mr and Mrs Y did not work out, and broke down. The child was moved by the Local Authority, with consent of the adoptive parents, to another foster placement and settled well there.

 The LA then had the issue of what to do about the child’s legal status. The only people who held parental responsibility for her were the adoptive parents Mr and Mrs Y  (by virtue of the adoptive order) and the birth parents no longer had any connection in law to the child.

 

Mr and Mrs Y did not want to have any contact with the child or any further part in her life, and were in agreement with the Local Authority that the best thing for the child would be for the adoption to be revoked.

 

Easier said than done. The only criteria for revocation of an adoption order under the Adoption and Children Act 2002 was not applicable here,

 

S55

  (1) Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order.
 

 

    (2) In relation to an adoption order made by a magistrates’ court, the reference in subsection (1) to the court by which the order was made includes a court acting for the same petty sessions area.

 

 

Clearly that wasn’t the reason for the adoption being revoked here, so it didn’t apply.

 

The case law also didn’t help, as the overwhelming thrust of the case law is that revocation of an adoption order should only be where the order had been made by fraud or mistake – the seminal case being Re B (Adoption : Setting Aside) 1995 1 FLR 1   – where a child was adopted when the adopters believed the child to be Jewish , but was in fact of mixed Catholic and Muslim parentage , causing considerable problems for the child in later life (the adoption had been made in 1959), and the Court determined that there was no jurisdiction to set the order aside.

 

The LA sought to persuade the Court to use the inherent jurisdiction to revoke the adoption order, on the basis that all parties were in agreement that this would be the best thing for the child.

 

The Court flagged up a number of issues that would arise from accepting that the Court potentially COULD use the inherent jurisdiction to revoke the adoption order :-

 

 

(a)   Should the child be separately represented?

(b)   Would there need to be an expert assessment of her?

(c)   Are the birth parents entitled to be served with the application? What impact might that have on the child?

(d)   The general public policy issues of expanding the circumstances in which adoption orders (which are by definition final and definitive orders) might be overturned.

 

 

The Court ruled that if it was contemplated that the adoption order might be revoked, that would necessarily revert the position in law to that of a Care Order, and thus the birth parents would re-acquire their parental responsibility, and thus it was inconceivable that such an application could be properly dealt with by the Court without the birth parents being involved.

 

The Court declined to use the inherent jurisdiction, and made a Care Order, which of course then shares parental responsibility for the child between the Local Authority and Mr and Mrs Y (who were clear that they did not intend to exercise PR)

 

This is an interesting little nugget at the end, and is, I think the first reported case where 26 weeks has played a part in the decision.

 

14. Turning then to the Care proceedings, as I say it seems to me to be of the greatest benefit to the child and all concerned that these are now brought to an end.  They have been running for getting close to what is now the 26 weeks ‘deadline’ under the new approach.  I have read the Care Plan dated 19th March 2013; there is no issue about the Threshold being met.  All parties agree that there is to be a Care Order and, in my judgment, the sooner it is made the better.  I shall therefore make it today.

 

Hardly controversial usage of 26 weeks, since everyone was in agreement that a Care Order was the right order.

 

A bit of a shame that the case did not address the curious little quirk of dealing with adoption breakdowns  – all of the duties on the LA to explore options for placement within the family still apply, but of course given that Mr and Mrs Y are the legal parents of the child, and the birth parents are not, those duties apply to the extended family of Mr and Mrs Y.

 

In reality of course, unless the placement has been long and enduring and then suddenly breaks down, it is pretty unlikely that extended family members of the adopters would seek to care for the child, since there is no blood relationship, but it is a curious little quirk and one I think a lot of people miss.

 

 

I think that this decision is correct on the law, but there’s potentially a deficiency in the law which needs to be addressed, where a child is legally bound to parents chosen for her by the State, when those adoptive parents cut their ties with her, but that legal relationship can’t be ended.

 

That’s a fairly unusual decision – most adopters tend to stay involved and committed to the child even after a breakdown, and I’d draw a distinction between those adoptive parents who continue to play a parental role and those whose involvement in the child’s life ends when the placement breaks down.

 

I’m never terribly fond of adopters who when the placement break down, have the ‘wash our hands of her’ approach. If you adopt a child, it isn’t like buying a cardie from M&S – you don’t just hand it back and forget the whole thing ever happened.   [I don’t know if that’s what happened with Mr and Mrs Y, but the judgment doesn’t read attractively to me]

 

Given that the child won’t be placed in another adoptive placement (or is unlikely to be), Mr and Mrs Y will legally be her parents for the rest of her life, AND the relationship with her birth parents which was severed in order that she could be placed in a permanent adoptive placement remains severed even though no such placement will be obtained.

 

As an issue of natural justice, it seems fairer to me for the position in law to be that the adoption order is revoked, and the situation revert to a Care Order, with the child being in foster care, and the birth parents Parental Responsibility being restored. If that means that they challenge the arrangements and apply to discharge the Care Order, then so be it.

That’s NOT how the law is, and this decision was right in law, but I don’t see that this sort of case is miles away from the ‘statutory orphans’ case. There won’t be anyone other than the State exercising PR for this child, and others like her.

 

If the child had been placed in long-term fostering (which is what will happen to her now), the birth parents would have retained parental responsibility and been entitled to be consulted on major decisions, to participate in Looked After Child reviews, and always had the opportunity to make an application to Court if they were sufficiently concerned about the Local Authority’s care of the child. 

In a case like this, where the actual care of the child BECOMES long-term fostering, as a result of circumstances, and there’s nobody exercising PR for the child other than the State, why should that be any different?

I don’t know if anyone in the case floated the issue of a declaration of incompatibility with the Human Rights Act, but that would seem to me the only thing missing from the judgment. If a child who is adopted, has legal ties with birth parents cut, then has the placement breakdown and can’t sever the legal links with adoptive parents who have washed their hands of her, that seems to me a gap in the law that warrants a change.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

5 responses

  1. Jerry Lonsdale

    Just started to read the Judgment and the second paragraph is harrowing.

    2. In 2005, not long after the Adoption Order was made, Mr and Mrs Y separated. G remained with Mrs Y and the two natural children of Mr and Mrs Y, who are her elder brothers. Thereafter, Mr Y had contact to G. To cut a long and unhappy story very short, the adoption proved unsuccessful; Mr and Mrs Y appear to have been unable to relate to, or respond to, or manage G’s particular needs and / or behaviours. They reported her variously as “soiling”, “lying”, “hoarding food”, “showing sexualised and risky behaviour”, “having poor hygiene”, “having inability to make suitable friends”, and “being malicious and vindictive”. She was obviously a very troubled little girl with understandably low self-esteem and many problems, the precise causation of which does not matter and might well be difficult to determine. From time to time, the Child & Adolescent Mental Health Service became involved, as did Social Services, in their attempts to support the family; but to no avail. The parents felt they had “nothing left to give”. Thus, a time came in November 2012 when, with the consent of Mr and Mrs Y, G was moved from their family and to foster carers. She has been there ever since and is doing very well. I am told that there are no behavioural problems any more at home nor at school and that the social worker is hopeful that this may be the final foster placement. That said, G still shows signs of attachment to the Y family and has told both the social worker and her Children’s Guardian that she would like to return to live with them if possible. She has been told that it will not be possible. She has written a letter to the court, unaided, which is referred to in the Children’s Guardian’s report of Anne Hutson, dated 24th March 2013, where she says:

    “My letter to the Judge: I think that I am allowed to see my mam and dad [Mr & Mrs Y] again. Because I miss them. But I never could understand why they didn’t want to see me or ring me. I am very happy and settled with [the foster carers] because they are very kind to me and I feel loved and cared for …..”

    The Adoption order was most likely not even a year old before Mr and Mrs Y separated, surely the effect on the Girl of that separation would have been dramatic, bearing in mind the comments from the Adopters regarding their 5, yes five year old adoptive daughter.

    Was the separation to blame? I am almost certain it was.

    Heading south of the river this paragraph alone will or should cause concerns if proceedings are forced through to the 26 wk concluding time frame, many many children who are brought into the care system are very troubled indeed, many of the problems only come to light after the event.

    I would also place a portion of blame for the adoption process who declares parents suitable for adoption, was the cause and effect that, not, undertaking the correct checks cause some of the issues, the Child would have been 4 years old when the adoption process commenced, surely the adoptive parents would have known what lay ahead and the possibility the child they adopted would be troubled.

    we know of another adoptive family who are trying to part the red sea to ensure their adoptive daughter who’s adoption broke down receives all the help and support they know their daughter needs, sadly as time has gone by the child becomes older and now its neigh on impossible to address those issues.

    I have always pondered the reasons why an adoption order could not be revoked, I know of an adopted adult who is 40 years of age even attempting to overturn her adoption order, she is faced with a mine filed to navigate as the Law is not there for this to be achieved.

    Even when a Child reaches adulthood it is impossible for them to revoke their adoption order.

    What is an adoption order, in many ways it could be seen as a contract passing the legal duties and responsibilities for a child from one set of parents to another,

    when the contract is no longer valid then surely the legal obligation is for the Local Authority to inform the birth parents let the birth parents then make choices and be part of the process again, that I know does not happen, when that does not happen just what is the effect that alone would place on the Child, who has already lost their second set of legal parents (despite the possible many foster placements in the early stages) how can it be just and true to allow this to keep happening.

    The Law quite rightly needs addressing more than clarifying, BASW are currently debating the 80 year old child neglect law, thats fine but debating the Law doesn’t really make the necessary changes.

    • There’s a petition out there – “Allow adult adoptees to be repatriated into THEIR OWN families”
      http://epetitions.direct.gov.uk/petitions/38120

      • It sounds to me a laudable aim. If the State adopts a child, and that child grows up to become an adult and makes an informed decision that they would rather that their legal parents were their biological parents, it is hard to stand in the way of that. Maybe you’d do something like have it kick in at age 25 and up, to avoid it being a decision taken in haste / teenaged rebellion “You’re not my real dad” stuff, but where the adopted adult has given it some thought and genuinely wants to re-instate the legal relationship between themselves and their biological parents, shouldn’t there be a mechanism to do so? It always felt like an odd omission in the Adoption and Children Act 2002, given that the State already knew about the Jewish/Christian/Muslim adoption case that there was no mechanism to do this, even if restricted to exceptional cases.

    • I think it is imperative in law to inform the natural parents of an adoption breakdown. Due to the fact that many adoptions are contested, therefore do not have the consent of the natural parents; ie a “forced adoption”, then the child in many cases will still be loved and missed by his or her parents.
      I would like adoptive parents to know whether their adoptive child was adopted without consent from the parents too. The grey area in this country with Local Authorities successfully taking into care any children they seem to want, and managing to contrive reasons why these children should be adopted, has to be opened up to public scrutiny.
      It is not a pretty picture, the state of the family courts in the UK.

  2. “It always felt like an odd omission in the Adoption and Children Act 2002”

    I believe the Act was designed with the middle-class infertile couples, rather than the children, in mind,

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