Re LRP (Care Proceedings : Placement Order) 2013 and some labour saving remarks from the High Court
You may recall the seismic shift in the jurisprudence about adoption law that happened in autumn of this year, following Baroness Hale’s judgment in Re B and the subsequent adoption of many of her thoughts by the Court of Appeal in Re B-S and many others.
One of the things that was in my list of unanswered questions was the extent to which the Court, in deciding that “nothing else than adoption will do” has to explore or exclude long-term fostering as an option. Is it mandatory to give reasons for ruling it out, or can the Court – having established that nothing else than permanent care by the State will do, simply determine that adoption has advantages that make it the more desirable option?
Well, although this is a High Court authority rather than a Court of Appeal one, it is fair to say that the High Court judge gave the “long-term fostering” argument pretty short shrift – the case involved a young child, indeed a baby.
In fact, it only arose as an issue at all because the social worker was obliged as a result of Re B-S to put it in as a possible placement option and outline the advantages and disadvantages
The only other possibility mentioned within Ms Gorbutt’s report, is that LRP might be placed in long term foster care. It emerged during the course of the evidence that the primary reason for raising long term foster care, which Ms Gorbutt does not support, was so as to attempt to satisfy the requirements of Re B-S (supra) and other recent Court of Appeal guidance.
The analysis, whilst making it plain that adoption was the preferred option of the LA, said this
Ms Gorbutt’s report suggests that long term foster care would be a “means by which permanency can be achieved”; and that “a long term foster home can offer … commitment, security and stability within a new family…”
And Pauffley J’s take on this was (get your copy and paste button ready, it’s CTRL C then CTRL V)
- I profoundly disagree with those contentions. Long term foster care is an extraordinarily precarious legal framework for any child, particularly one a young as LRP. Foster placements, long or short term, do not provide legal security. They can and often do come to an end. Children in long term care may find themselves moved from one home to another sometimes for seemingly inexplicable reasons. Long term foster parents are not expected to be fully committed to a child in the same way as adoptive parents. Most importantly of all in the current context, a long term foster child does not have the same and enduring sense of belonging within a family as does a child who has been adopted. There is no way in which a long term foster child can count on the permanency, predictability and enduring quality of his placement as can a child who has been adopted.
- The realistic, as opposed to the fanciful, options are (i) a return to her parents or (ii) a placement for adoption. So whilst I am sympathetic to Ms Gorbutt, as I would be to any practitioner who is endeavouring to fulfil the requirements of the law in the way assessments are conducted and reports written, it is worth reiterating that the focus should be upon the sensible and practical possibilities rather than every potential outcome, however far-fetched
Well, I completely agree with Pauffley J, in relation to a newborn baby (these proceedings were actually concluded within 10 weeks), long-term fostering is not a proper care plan at all.
The final sentence is interesting – of course, as a High Court judge, Pauffley J doesn’t have the power to overturn Re B-S (court of appeal authority), but it is a clear marker that so far as the lower courts are concerned, a laborious exercise of setting out why adoption is better than long-term fostering is just a waste of everyone’s time and they don’t want to see it.
(I told you that you would want the cut and paste handy)
That also seems to me to mean, that until the Court of Appeal tell us otherwise, once the Court reaches the point of “nothing else but permanent placement outside the family will do” there is not a need to RULE OUT long-term fostering.
A welcome authority – let’s save the arguments on long-term fostering versus adoption for those cases where there is a genuine issue as to what the better option for the child might be.
It is also interesting that although the Court of Appeal authority required the LA to spell out the disadvantages to the child of making a placement order, Pauffley J goes through those disadvantages like a drug-fuelled chef julienning some particularly tender vegetables. Perhaps the vegetables had been pre-tenderised by some forceful handling?
- Placement order – the disadvantages
- The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. She will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be, as Ms Gorbutt suggests, that in future LRP will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated.
- Ms Gorbutt comments that “in the event a culturally matched placement is not found, LRP’s diversity needs will not be met.” She continues, “There is a risk of placement breakdown.” Those fears, it seems to me, are misplaced. They fail to recognise the realities, well known to all professionals who practice in the field. I mention the most obvious. First that the younger a child is placed within his / her permanent alternative family, the better the chance of a very successful outcome. Second that LRP is an infant child born to “White British” parents of average to good intelligence so that ‘family finding’ for her should be entirely straightforward. Third, that there should be no difficulty at all in identifying a culturally appropriate placement. Fourth, that I may safely ignore the absurd suggestion that LRP’s “diversity needs will not be met.”
Do we get the feeling that other than in the rareified air of the Court of Appeal, judges on the ground are somewhat patronised by being told how to do their job and at having to laboriously read arguments about the blindingly obvious?