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Who you gonna call? Myth-busters

 

 
There’s been quite a lot of publicity about Martin Narey’s Myth-Busting document on adoption, following the recent adoption statistics taking a hit – something that any one who had been reading the case law in the last 18 months had seen coming a country mile away.

Apparently that’s all just a misunderstanding by dopey Local Authority social workers and lawyers, and it is all our fault.   The Court of Appeal overturning case after case last summer had nothing to do with it.
[Tim Loughton, the former Children’s Minister instead says that the problems are due to Judges sulking about legal aid cuts and slowing things down deliberately. At least, according to the Telegraph he said that. http://www.telegraph.co.uk/news/politics/11224155/Judges-resentment-toward-Government-adding-to-adoption-slump-ex-minister-warns.html ]

 

http://www.adcs.org.uk/download/resources/adoption/ALB%20-%20Impact%20of%20Court%20Judgments%20on%20Adoption%20-%20November%202014.pdf

The national Adoption Leadership Board, Family Justice Board, and the Department for Education have heard regularly that these changes are a response to a number of high profile court judgments on care and adoption order cases, notably Re B and Re B-S. Some of this feedback suggests a degree of misinterpretation of these judgments. This appears to have resulted in inaccurate assumptions being made about the judgments which, in reality, do not alter the legal basis for the making of care and placement orders.

 

The document discusses the two recent cases from October, where the Court of Appeal distanced themselves from a literal interpretation of “nothing else will do” – explaining in Ben Goldacre’s phrase “I think you’ll find its a little more complicated than that”

If the Myth-Busting document were confining itself to commentary that the deluge of appeals last summer were something of a blip and we have settled down from a strictly literal interpretation of Baroness Hale’s “nothing else will do” phrase to something rather more nuanced, then I’d be fine with it.  Or even “rumours of the death of adoption have been greatly exagerrated”

Though frankly, no matter how senior the senior QC, I’d prefer to hear the Court of Appeal say “just ignore BS, it changes nothing” than to take it from a document with no legal status or weight.

 

I don’t care for the implication that Re B and Re B-S weren’t a shift in emphasis and culture – that’s to completely ignore just about everything that Hale and Neuberger said about the nature of adoption in Re B, to ignore the ECHR in Y v UK when they said this :-

 

“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

or that the Court of Appeal meant nothing of substance whatsoever when they said this

 

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

If you think that has had no alteration on the legal basis for the making of Placement Orders, then I’m afraid we’ll have to disagree.  Does it change the tests in the Act? No, absolutely not. But as the Supreme Court made plain in Re B, proportionality is now a key ingredient in assessing such decisions.  And the interpretation of the word ‘requires’ in the Adoption and Children Act 2002  is now inextricably bound up with proportionality and article 8.  And the move away from linear judgments (whereby adoption ended up looking like the best option simply because all the others had been ruled out before the Court thought about adoption at all) from Re G is unquestionably an alteration to the legal basis for the making of Placement Orders.

If instead you mean – the combination of all that law should not mean that children who ought to have been adopted in 2012 shouldn’t be adopted now – the law is about making professionals and Judges work much harder on clarity of thought and reasoning, I wouldn’t entirely disagree  (I think that’s Baker J’s take, and I rate Baker J very highly).  I think there’s a very important debate to be had about whether Hale and the Court of Appeal wanted adoption to be harder to get for children, or harder to get for PROFESSIONALS.

But whether the “bar” has been raised or not, the legal basis has certainly changed – a judgment that would have passed muster in 2012 would not today.

 

And I completely agree with the document on Myth 4

MYTH 4 – because it is a “last resort” planning for adoption must wait
23. Local authorities should plan at the earliest possible stage for the possibility of adoption where it seems possible that other options – such as reunification with family, or care by family or friends – might not prove a realistic course of action

That does not mean pre-empting any decision. Nor does it remove the need to provide expert, high quality, evidence-based assessments of all realistic options to the court – which is essential in every case. But planning ahead is necessary to avoid delay and allows for a more timely process in achieving the right outcome for the child.
Absolutely right. I fully agree.  One out of five Myths successfully Busted. The others, rather less so.

 

 

I had a long long diatribe, but I’m going to confine myself just to Myth Five.

Let’s just take Myth number 5 in detail.

MYTH 5 – the 26 week rule applies to placement orders
24. Under the law as it came into force on 22 April 2014, any application for a care order or a supervision order must be completed within 26 weeks (unless the court is satisfied that delay is necessary, in which case a court may grant an extension). Placement order applications are not subject to the 26 week time limit. However, if the case is one in which the care plan is for adoption, if it is possible to complete the placement order application within the 26 week time limit, then that is likely to be in the best interests of the child, as we know that delay damages children.
If one takes each individual word, it seems true and accurate. But it doesn’t actually represent reality. The suggestion here is that Placement Order applications are free of the 26 week shackles, though it is good to get it done in that time if possible. The implication is that you can do Placement Orders in a timescale that is the child’s timescale, free of 26 week confinement.

That’s just not actually true in a meaningful way.
Yes, under the law as it came into force on 22nd April 2014 the 26 week timetable applies to care order applications, not placement order applications.

But the Act and the law are not the same things. They aren’t identical.

You can’t seek a Care Order with a plan of adoption unless you have got approval from the Agency Decision-Maker. And if you’ve got approval from the Agency Decision-Maker, you are in a position to lodge your placement order.

So if the Local Authority HAVE to hit a 26 week timetable (really 17 weeks for them, because they have to provide their evidence BEFORE the end of the case to let others respond to it) for their Care Order, then in any case where there’s a PLAN for adoption, then the same timetable applies.

 

Don’t take my word for it – let’s look at what the Court of Appeal said in a judgment that is utterly missing from the Myth-Busting document

Surrey County Council v S 2014

There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.

•In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/601.html

[This case sticks out in my mind because it was Ryder LJ giving the lead judgment and I wholly agreed with it. That gave it a veneer of uniqueness that makes it easy to recall]

And of course, we are seeing right now with Re D that having a stand-alone Placement Order application (which is the practical import of Myth number 5 if we believe what Narey’s document is telling us) leads to the parents being unrepresented for the most draconian order that can be made. Article 6 anyone?

Myth 5 is not correct in any meaningful way – Care and Placement Orders are now inextricably bound up together and so, therefore are their timetables.

When the document says that it is a myth that 26 weeks apply to Placement Orders, that’s just not correct in any meaningful way in the real world. If you want to seek a Placement Order, you’re going to be doing it on a 26 week timetable, or persuading the Court to grant a s32(5) extension of that timetable in accordance with Re S.

 

Bustin’ makes me feel good.

 

 

I’ll quickly say that when the Myth-Busting document says of Re B-S  The judgment does not make it easier to obtain permission to oppose an application for an adoption order. The test remains the welfare of the child throughout his or her life.  

 

That simply holds no water when you look at the cases – pre B-S no successful leave to oppose, after B-S they are rare but happening.  An adoption order being discharged so that the argument could be re-heard, for example (Re W) On the ground, we’ve gone from leave applications being very unusual to every other adoption application having one.  And reports now of successful leave to oppose cases leading very close to a successful opposition (the High Court saying that it was only due to the exceptional circumstances and facts of the individual case that led to the father’s preference of a Special Guardianship Order not being the final outcome Re N (a child) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate )

 

The major plank of LA opposition to leave to oppose applications pre B-S – the impact on the carers of the application, which usually defeated such applications without more, is now rarely deployed, because Re B-S altered the principle dramatically in highlighting that the child’s welfare is not a short term thing, or even during childhood but is to be extended to consider his or her entire adult life.

 

So far as Busting is concerned, this is less Peter Venkman and more this dude  (a figment of the imagination)

 

There is no Narey, there is only Zuul

There is no Narey, there is only Zuul

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About suesspiciousminds

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

9 responses

  1. I have found an unexpected ally in judge Mostyn who gets it all about right !

    MR JUSTICE MOSTYN said(”para 35). The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious.”

    Link – http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

    • Yes, I wrote about that one at the time Ian, and I thought you’d like that bit. It is, as I said at the time, a reasonable point, and an opportunity missed that the Family Justice Review went to Australia for ideas rather than looking at Sweden, France, Germany for how they do it. Maybe our adoption system is a lot worse, maybe it is better, but a Government that is pushing it heavily ought to have not been afraid to look into the evidence base.

  2. The FJR looked at Australian experience of private law reforms. There is virtually no stranger adoption in Australia, for obvious reasons.

  3. I believe that in some round about way I am happy that the figures for adoption have declined, *Removes head from Guillotine for time being*

    I have just looked on to the list of “National Adoption Leadership Board” Members and what I find is entities with the most to gain from adoption of children, there are 5 separate adoption entities and two whom are “Consortium’s” of adoption agencies, how many adoption agencies or other they represent is unknown,

    Why would there be such a need for all of these adoption organisations, agencies and charities if they were simply wanting to do the best by children, instead what I see, read and witness is nothing but the opposite, I find that after reading Messrs Narey and Loughton’s take on the issue I am feeling very very uneasy that the amount of “Organisations” are all vying for the same few children available for adoption, hence a fundamental reason there is uproar because they are running out of children, all I have seen of late from the actual Education Minister Edward Timpson is the pat on the back letter to adopters, which quite frankly I know many adopters felt it to be an insult especially those with problems that a simple letter could not solve.

    Has these orgs been set up too quickly in the hope there would be countless bus loads of kiddies all needing something, that something being adoption, with the Gov’s relentless drive and a few others I might add in the need for more and more children to be adopted one would say that has had the adversarial effect and no doubts the reasons why the Myth Busting brigade have swung in to action.

    This is the The Adoption Leadership Board (ALB) brief of their principle set up, why there needs to be the word “Leadership” in the title heaven only knows.

    http://www.adcs.org.uk/download/resources/adoption/ALB_Core_Brief_v2_May14.pdf

    There is not a single person/organisation on there that I can see has the requisite legal knowledge to be in a position of a smack down between us and them, we can all pontificate what we think goes on in Care and Adoption proceedings but until they, the members of the ALB actually place themselves into the lives of the families which is all this is about then they cannot really be a prima facie Group to be able to dicta otherwise, would you agree or do I need to raise the blade of the Guillotine?

    I do see that Sir Martin only focuses on the two leviathans that are Re.B and Re.B-S, why only them two are singled out again maybe it is because they caused the most debate so they should be blamed and take the brunt of the whipping from the ALB.

    I think personally ALL these cases are the ones that made the most significant changes last year and without a doubt had the most impact on debates surrounding this whole area not all were successful appeals as indeed Re B and Re B-S were appeal refused, and Re.B-S was about leave to oppose adoption applications, so although the significance of the case is widely known the outcome remained the same in that the two children were adopted<—MN, if your reading!

    A) Re. B (A Child) (FC) [2013] UKSC 33.

    B) Re. K v London Borough of Brent [2013] EWCA Civ 926

    C) Re. V (Children) [2013] EWCA Civ 913.

    D) Re. P (A Child) [2013] EWCA Civ 963.

    E) Re. G (A Child) [2013] EWCA Civ 965

    F) Re. Y (A Child) (Decision of Court of Appeal 3rd Oct 2013)

    G) Re. B-S (Children) [2013] EWCA Civ 1146

    H) Re. W & Re H. [2013] EWCA Civ 1177 (CA)

    I) Re. D (A Child) [2013] EWCA Civ 1480

    J) Re L. (A Child) [2013] EWCA Civ 1481.

    I don't intend to link each judgment they are all on bailii and the most I think were explored by the Supremo Mr Sues on this blog, I will not add the ones from this year but I think you get the picture, those listed cases are up to January of this year.

    Those 10 cases are of significant importance and while 3 are from the same Judges the rest are from other Judges, so when we see the Myth Busting exercise by Sir Martin and Tim Loughton one wonders if they even read the other 8 cases on the list and compared to see if what they were trying to say is on the same platform, personally I would say they were at the wrong train station, everyone has the right to have a dig at the courts and L.A's I am on top of the list for doing that however, when you have a dig make sure what your saying is right, to simply make snap shot comments without seeing the matter in High Def, then their vision is blinkered and the results are flawed, and, in this instance very deeply flawed.

    Up until quite recently there were on average 900 care applications made per month averaging a 10% increase in comparisons, although we cannot possibly know how many resulted in Placement Applications or Adoptions.

    Judgments are simply not being published enough to explore the myths Martin Narey thinks are out there, because of this judgment problem, theoretically we should be seeing on average 900 published judgments per month.

    Even with the 26 week "Limit" for care orders that was placed upon the courts et al with significantly less resources, all we have really seen is a more in depth analysis of each individual case, nothing has really changed the status quo, the outcomes remain stagnant and while the push by those who want more adoptions do not see the real picture, Judges are not getting it wrong at all and neither are the L.A's how can it be so when there is a marked increase in initial care applications, which I believe is also what Sir Martin was suggesting two years ago in that L.A's were failing to take children in to care sooner, he should be pleased on the increase of care applications surely.

    I have never understood the game which Sir Martin Narey plays, he never seems to be happy or content with understanding the issues, I am always aghast at some of the comments and suggestions he comes out with, a few people who read this blog know I challenged Sir Martin to a duel early this year and I asked him to agree to shadow me with one of my cases then he could see for himself the start and finish of care proceedings, not just with the courts but the whole picture, I will say to his credit he did agree to shadow me which was somewhat of a surprise, unfortunately on my part I was placed in a significant dilemma in May of this year which meant it was not a workable option at that time, who knows I may just see if it is workable again.

    I wonder if those on the ALB have though that there are only so many children, they are not made out of clay or grown in fields, are they aware that many are not suitable for adoption nor is adoption the option, even though there was a marked increase in Adoptions this year and Sir Martin and Loughton were singing the praises, to relentlessly pursuing this drive for adoption will ultimately lead to failure.

    • Just to add a slight correction in this, I have been informed that the Myth buster document released by Sir Martin Narey was written by a QC, not sure whether its true or not

      • Pink Tape names her on her blog

      • Not sure if written by, or assisted by input from. It doesn’t read in a very silky way to me; but the ALB certainly had assistance from Janet Bazley QC (who I believe is good, I haven’t seen her on her feet to say definitively one way or t’other, but I have never heard anything bad about her)

  4. Pingback: Take me to your Leadership Board / Pink Tape

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