It has been a vexed issue ever since the 26 week guillotine came in, heightened by the Supreme Court and Court of Appeal’s emphasis on adoption as ‘last resort’ where nothing else will do – what is a Court actually going to do when a relative comes forward at week 20, week 22, week 24, and assessment of them would derail that all-important timetable? This is something I dubbed the “Auntie Beryl” question, and it is one that crops up in these cases around the country.
We won’t really know until a Judge somewhere tells Auntie Beryl that she is too late, that she should have come forward sooner, that she can’t be assessed, and makes an adoption order. Then that will be appealed and the Court of Appeal will try to square that circle of “26 weeks” with “nothing else will do”
In this case, which is the first to touch on this point since it became a genuinely difficult issue (since pre 26 weeks, the assessment would ordinarily be done), the High Court attempted to deal with it.
Re K (A minor) 2013
The grandparents in the case put themselves forward as alernative carers really early on, just after the child was born. A “guardedly positive” viability assessment was prepared. At a hearing in March 2013, the grandparents decided with a heavy heart that they weren’t able to offer a permanent home and withdrew.
However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application. The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K. She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis. The grandfather, who had had a heart attack two and a half years previously, had started having chest pains. They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved. They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs. They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.
In due course, having completed assessments of the parents, the Local Authority’s plan was for adoption.
Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today. The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him. She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk. They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application. They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.
The May hearing was pushing very close to the 26 week deadline. It certainly would not have been possible to undertake the Special Guardianship assessment within that period – in fact, the assessment would have required another 12 weeks, pushing the case from a six month case into a nine or ten month case.
The Court had a hearing to decide whether to grant the grandparents leave to apply for a Special Guardianship Order (i.e to delay the final hearing to obtain that assessment) and heard some limited evidence from the grandmother. The Court referred to the case law in relation to applications for leave (although personally, I think the caselaw cited is somewhat out of date, and there is substantially more recent authority making it plain that it is a more nuanced procedure balancing all of the factors rather than Re M 1995’s rather ‘soundbite’ approach – the Court of Appeal in Re B (A child) 2012  EWCA Civ 737 – in fact, the Court of Appeal say that rather than s10(9) containing a ‘test’ or anything like a ‘test’ to be crossed it simply tells the Court to have ‘particular regard’ to certain factors, whilst other factors can by implication be weighed in the balance too)
The Judge concluded
- No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child. I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required. The grandparents know very well that they cannot properly commit themselves to this task. This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority. Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.
- I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it. I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success. So I do not simply bring the guillotine down on the basis of 26 weeks. This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts. It is for me to factor in all these considerations in K’s interests. Therefore I refuse the application.
Not quite an Auntie Beryl case in that the Court felt that there was enough information to say in effect that the grandparents application was not going to be successful even if the proceedings were delayed – rather than there being a paucity of information about the family member due to late presentation.
Parker J then gave some general guidance
- Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit. The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.
a. Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.
b. Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification.
c. Any application for further assessment or joinder by a relative or other person must be resolved very swiftly. Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed.
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I am minded in this matter to the debates around the Re. B-S case and some of the changes that followed from Re.B,
This is from my own analysis of the smackdown from 2013.
It is clear that the Court of Appeal expects that evidence must “address all options which are realistically possible and must contain an analysis of the arguments for and against each option” (paragraph 34).
The Court of Appeal approved the dicta of Ryder J in Re. K and The London Borough of Brent. More specifically what is needed at paragraph 21.
“An assessment of the benefits and detriments of each option for placement and, in particular, the nature and extent of the risk of harm involved in each of the options”.
Both Local Authorities witnesses and guardians need to cite the arguments for and against adoption and long term fostering or any other options.
In essence, the evidence should address “fully reasoned recommendations” This is to fulfil the exacting test set out in Re.B and the requirements of Article 6 and 8 of the HRC.
As to Judgments, there mus be an adequately reasoned Judgment, The Judge has to carry out a “proper balancing exercise” and proportionality analysis” (paragraph 41).
There must be a reasoned acknowledgement that adoption is indeed the last resort with a full consideration of what is the reasons why that adoption is justified.
Black LJ stated in the Re. K v London Borough of Brent at paragraph 126 the Judge must give proper focused attention to specifics.
The Court of Appeal also restated the Law that judicial exercise should not be a “linear process” whereby each option other than the most draconian is looked at in isolation and then rejected because of internal deficits that may be identified with the result that at the end of the line, the only option left standing is the most draconian. That is therefore chosen without any particular consideration of whether there are internal deficits within that option.
Essentially the linear approach is not only apt when the judicial task is to “undertake a global holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare” (para. 43) reaffirming McFarlane LJ in Re.G (A Child)  EWCA 965 at para’s 49 and 50.
The most crucial point now is the taking the “Global Holistic Approach” (Para 44)
Judges must be careful not to engage in formulaic judicial window dressing. Substantive consideration needs to be given (Para 44 and 45). At paragraph 49 the Court of Appeal stated that if the court does not have the kind of evidence which they have identified and is not properly equipped to undertake such a decision “then an Adjournment must be directed, even if this takes the case of over 26 weeks”. There cannot be a rigorous adherence to an inflexible timetable and justice potentially denied, if that is the result of the 26 weeks’ timetable.
It is saddening that at the start of proceedings parents views of wanting to seek out the Aunty Berly’s are not on the list of priorities for them, the approach for parents to identify possible extended families to me should be borne to the Local authorities to fully investigate PRIOR to any Court Proceedings commencing, the use of Section 17 would suffice the L.A to take that approach, sadly section 17 is not a commonly used section, well up north its not anyway.
The problem with that Jerry, and I looked into this, is that it has to be up to a parent which of their relatives they want social workers to go and tell about their very personal problems and situations. If it happened to me, there are people in my family that I would not want to ever know. And if I DID want them to know, I’d want them to hear it from me, not a social worker. I do agree that the modern expectation that parents can decide this at the very first court hearing or seven days later doesn’t bear much connection to real life, real people, real emotions.
On Re B-S, am reading all of the placement order judgments published under transparency, and I’m really not seeing many that come close to it. Am seeing more than a few that have just swapped one set of judicial window dresssing (draconian order) for another (nothing else will do)