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I would put this as a must-read (adoption case, dynamite)

 

The case is very fact-specific (the facts are extraordinary) but it is still very important.

 

I’ve written before about the leave to oppose adoption case law and whether this is a meaningful legal right given that there are no reported cases of an adoption being successfully opposed (there’s one law report of a Court being persuaded to make a Residence Order rather than adoption, but the child remaining with the prospective adopters).

 

For it to be a meaningful legal right, there must be some set of circumstances which would result in the opposition to adoption resulting in placement back in the birth family. But, the consequences of that for the recruitment and retention of adopters is massive.

 

As Holman J observed, this case is likely to attract strong opinions on both sides, and it does turn very much on an unprecedented set of facts.

 

Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

 

 

The child, C, was the subject of Care proceedings and a Care Order and Placement Order were made in August 2013. The child was placed with prospective adopters (A and B) and they duly applied for an adoption order.

 

At the time of this hearing, the child was 20 months old and had lived with A and B for 13 months.

 

The child’s genetic father, who had not been a party to the care proceedings (and who does not hold PR for the child) sought leave to oppose.

 

This is the telling paragraph

 

It is accepted by all concerned in this case that if the father had come forward and the true paternity had been established at any time up to the moment when the child was actually placed with A and B, then he would not have been placed with them and, after due assessment of her, would almost certainly have been placed with the aunt.

 

 

I’d urge you to read the whole thing, but that paragraph is dynamite.

 

As is this one

 

The case and dilemma has provoked divergent professional opinions. The front line social workers for each of the child and A and B support the making of an adoption order. A child psychologist who was jointly instructed to perform a “paper exercise”, but has not met anyone concerned, favours the making of an adoption order. The Director of Safeguarding Children and Families and interim Strategic Director Children’s Services of the local authority (equivalent to the Director of Social Services in this field), who is the decision maker and who expresses the considered opinion and case of the local authority, firmly resists adoption and advocates that the child moves to live with the aunt. The child’s guardian also strongly advocates that outcome.

 

 

That made me blink several times, so I will spell it out. The social workers supported the adoption, but the Guardian AND MORE SIGNIFICANTLY the Director of Social Services supported the child being placed with the paternal aunt.

 

That really is an extremely difficult issue to resolve. As a Local Authority legal hack, the idea of a Director and Social Worker in an intractable difference of opinion makes me shudder. [This Director was clearly very fair minded in not just saying “well, I’m the big boss, so do what I say”]

 

I’m not surprised by what Holman J says at the opening of this judgment.

 

 

I have been a full time judge of the Family Division for almost twenty years. In all that time, apart from cases concerning serious ill health, I have rarely heard a more harrowing case. The hearing was a very painful one for all concerned, and I sincerely thank all parties and the professional witnesses for their attention, dignity and, to the extent possible, good humour. I know, and deeply regret, that my decision will cause intense grief. After hearing all the evidence and argument, and after due consideration, I am, however, clear as to the outcome, which I do not reach narrowly or marginally.

 

 

I’ve read many of Holman J’s judgments over the last few years, and he really has dealt with harrowing, peculiar and emotionally draining cases repeatedly, so to say that speaks volumes.

 

 

This passage will probably appear again – it is how the Court deals with the issue of “speculation” (and I think it is wonderfully constructed)

 

There is one further “legal” matter which it is convenient to mention in this section of this judgment. At times during the hearing, when longer term risks or advantages were being mentioned or considered, Mr Power referred, understandably but somewhat dismissively, to “speculation”. Advocates, and also judges, often do dismiss points as speculative or speculation. However, in relation to adoption, the Adoption and Children Act 2002 very clearly does require courts (and adoption agencies) to speculate. It requires, as the overarching duty, that the paramount consideration must be the child’s welfare throughout his life. This child is still less than two. He is healthy, and his normal life expectancy may be around a further 80 years. It is probable (but speculative) that he and his half sister, F, and his cousin, G, will outlive all the adults in this case by many years. I am required by statute to take a very long term view, but I cannot gaze into a crystal ball. I can only speculate. More specifically, the court is required by section 1(4) (c) of the Act to have regard to “the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person.” Whilst that paragraph requires the court to consider only the “likely” effect, any such consideration involves speculation; and (speaking generally) the further ahead one looks (and one must envisage a whole lifetime) the more speculative such consideration necessarily becomes. My decision in this case does include speculation. That is what Parliament has told me to do.

 

 

You may, as I was, be interested in how it was that this aunt was not a feature in the care proceedings. If she had been known about then, the Placement Order would not have been made and the child never placed with the prospective adopters A and B. So why wasn’t she known about?

 

 

This is the most fact-specific bit of the case, I think. (It is not THAT unusual for a birth father to be untraced during the proceedings and to appear later, it is the WHY that is significant here. Mr E here is NOT the genetic father, but he is the man who appears on the birth certificate as the father, and who was treated as the father in care proceedings)

 

The mother is a young woman of white ethnicity who is still in her very early twenties. She has had problems with both alcohol and drugs. While a teenager she had already had two children by different fathers. They are now aged about 5 and nearly 4. They were removed into care and have since been adopted together by one adoptive family. (I will refer to them later as the adopted maternal half siblings.) The mother began a relationship with Mr E. He, too, has had an unstable past and has a criminal record for a range of offences of both violence and dishonesty, and a recorded history of drug abuse. In March 2013 the mother gave birth to C. He was a normal, healthy baby, and is now a normal, healthy young child. As had already been pre-planned by Rotherham, care proceedings were immediately commenced and the baby was removed from the mother five days after his birth and placed with foster parents. Neither the mother nor Mr E engaged with the care proceedings nor, effectively, with the local authority. However, the mother and Mr E jointly registered the birth on 18 April 2013, jointly stating and signing that Mr E was the father to the best of their knowledge and belief.

 

[Keep that in mind – the mother was white]

 

 

The child’s social worker, from the end of March 2013 and still now, is Miss Claire Fogwill. She did not know or meet Mr E for some time. She did, however, see the baby. I have seen photographs taken of him shortly after his birth, including the original colour photograph which is part of the later formal application form for the placement order. Although not black, the baby is very obviously very brown and has obvious negroid features. These are not racist comments. They are relevant facts. As all concerned with the case agree, he very obviously appeared to be of mixed race. Miss Fogwill said in her oral evidence that “when [she] first saw him as a baby he seemed obviously to have a black parent or at any rate a strong black/negroid genetic strain.”

 

Miss Fogwill was finally able to meet Mr E, who was in prison, on 22 May 2013. She said that she was expecting to meet a black man and “was quite shocked” when he came into the room, since he appeared to be an entirely white man. She asked him whether he was the biological father. He said that he was. (It is, of course, entirely possible that the mother had assured Mr E that he was the father, if she had never confessed to him that she had been having sex on the side with the actual father. As I have no evidence at all from either the mother or Mr E, I simply do not know.) Miss Fogwill questioned Mr E further and, according to Miss Fogwill, he told her that the baby was very brown because he, Mr E, had a Burmese mother, and added that the baby would become paler with age. Neither Miss Fogwill nor, so far as I am aware, anyone else, took any steps to seek to verify whether in truth Mr E has a Burmese mother. I personally do not have the slightest idea. Miss Fogwill claimed that she was “not able to meet the mother again to ask her about paternity”, but in truth she made little effort to do so, and she made no enquiries of the mother’s own mother whose whereabouts were settled and known.

 

Miss Fogwill made reports to Looked After Reviews on 12 April, 13 May and 11 July 2013. Also present at, and chairing, these reviews was the Independent Reviewing Officer (IRO). The minutes of the first two reviews record that the child “… is a child of mixed heritage. His mother is white British … the social worker is, to date, unclear of father’s ethnicity and has asked [sic] father to clarify this …” The minutes of the review on 11 July, also chaired by the IRO, record that “… the social worker has clarified with father that he is dual heritage as his mother is Burmese … the parents wished for the child to be referred to as White British, despite his presentation not reflecting this. Father [viz Mr E] informed the social worker that he expected the child’s skin colour to change with age …” There is no hint in those minutes that the IRO queried the account of paternity or suggested that further enquiries should be made. I do not make a criticism of the IRO for she has not been involved in this hearing and has had no opportunity to state her own point of view, but I accept the point made by Mr Prest that the responsibility of Miss Fogwill appears to have been shared with others. Miss Fogwill has, however, accepted that she made a serious error in swallowing the explanation of the Burmese mother (i.e. the child’s grandmother) and not investigating paternity further, and she has apologised from the witness box to both the true paternal family and the applicants for adoption. Miss Fogwill’s formal report to the court dated 28 June 2013 in support of the application for a placement order depicts a photograph of the child as I have already described, and refers to his having black hair and brown eyes and a dark complexion. It continues that the mother is white British and Mr E is half white British and half Burmese as his mum was Burmese and father white British. “[C’s] skin is quite dark however [Mr E] states that as [C] becomes older his skin will become paler. [Mr E’s] skin is white.”

 

The present guardian, Mrs Sheila Hassall, also acted in the care and placement proceedings. In her report dated 19 July 2013 she describes Mr E as “White British Burmese” and says at paragraph 12 “[C’s] paternal grandmother is Burmese, although I understand his father [viz Mr E] views himself as white British. At present [C] has the appearance of a baby who is not white British …” As I understand it, the guardian herself never actually met either the mother or Mr E. So she merely accepted the story via the social worker. She said that she only ever saw a blurred black and white photocopy photograph of the child. She said that she visited the baby once at the home of the foster mother. However he was asleep, face downwards, with his head largely covered. She only saw one arm sticking out. The arm looked brown but she did not examine the baby further. Mrs Hassall accepted her share of responsibility. She said during her oral evidence: “I make a heartfelt apology we are in this situation. I feel desperately sorry for all those involved.”

 

I have already referred to the report to the court for the application for a placement order. I do not know whether the circuit judge saw the original with the colour photograph which, as I have described, very clearly depicts a brown child of mixed race with negroid features; or whether he saw a black and white photocopy, one version of which I have seen, which shows the child’s face as a barely distinguishable large black blob like a large blob of spilt ink. At all events, the judge appears not to have raised any question about true paternity at the, probably short, hearing when he made the care and placement orders.

 

 

If you are following this, Mr E was named as the father on the birth certificate, the mother said that he was the father, and he said he was the father. The contradictory evidence (of people’s eyes) was firstly an area that people feel uncomfortable with – that of colour, and secondly Mr E had given an explanation for it that was accepted. On that first point, just reading the paragraph, even when said by a Judge, it made me feel uncomfortable to read that ‘n’ word.

 

So a last opportunity seriously to question paternity and consider obvious avenues of further enquiry was lost. I accept, of course, that such enquiries might not necessarily have uncovered the true father, but they well might have done, for the affair between the true father and the mother was well known in the community and circle within which they lived. The mother’s own mother certainly knew the true facts, as will later appear.

 

 

Let’s also not forget that in a culture of 26 weeks, no delay, and assessments only being done if they are ‘necessary’, it might have taken some persuasion to get the DNA test of Mr E done. If it had been done, the proceedings would have been delayed, but an inordinate amount of time and pain would have been avoided.

 

How did the real father ever find out about this? Deep breath, because this is quite complicated too.

 

The father was in a long-term relationship with someone else, Miss D. When he had been sleeping with the mother, he was cheating on Miss D. There had been speculation in the community and gossip, and someone came up to Miss D and showed her a photograph of the child as a baby.

 

Soon after the child was born someone showed Miss D a photograph of the baby. She could see that the colour and the features looked like her own daughter, F, and also like the father. She told him “I really think he is your child.” He continued to deny to her that he had had sex with the mother and that, therefore, he could be the father.

 

It seems, though this is not explicit, that these suspicions continued and finally the father’s sister (the aunt in question) approached the Local Authority in March 2014   to say that she thought her brother was the true father of this child. (For timing purposes, that’s seven months after the Placement Order, and two months after the prospective adopters had made their application to adopt)

 

On 6 March 2014 the aunt first contacted the social services and said that her brother might be the father of the baby. Miss Fogwill was shocked and surprised by this news. She and a more senior colleague interviewed the father on 14 March 2014. She then immediately arranged for DNA sampling and testing of the baby and the man, and a report dated 24 March 2014 established a 99.9999 per cent probability that he is indeed the father. All parties including A and B accept that he definitely is the father and the case has since proceeded on that basis. The father is a black African who was born and brought up in that continent. He is now aged 32. His own father died when he was young. He himself travelled to England in 2001 and claimed asylum. He has lived here ever since and has indefinite leave to remain. He is the seventh of a large family of eight children. His own mother, now aged 64, now lives in the Midlands. Two brothers live in the Midlands and South Wales. A sister lives in East Anglia, and his youngest sister, the aunt, lives in the Home Counties. The brothers and sisters in England and Wales have between them eight children who are paternal first cousins of C. Some of them are of mixed race, having also a white parent. The father’s three other siblings live variously within Africa and Canada. There is, therefore, a considerable extended paternal family, mostly located within England and Wales.

 

 

But hold on a minute – this all happened within a small community, and whether the father knew or not that he was the genetic father of this baby, he must surely have known that as he had been sleeping with the mother, there was a chance that he might have been?   The Judge found that he was aware of that.

 

And did he know that the baby was in care?

 

This evidence as a whole satisfies me that, within a very few weeks of the birth at the latest, the father knew perfectly well that it was highly likely that he was the father of the baby. He could not of course be certain, since he knew also that the mother had had other sexual partners. But she told him, in effect, that the baby was half black and that he had been her only black partner. Short of DNA testing, the likelihood was obvious.

 

He took no action at all. He showed no real interest in the baby, or even much interest in seeing him, although he did ask the mother if he could do so. I do not know why not, but it was probably due, at least in part, to his continuing stance of denial to Miss D. Whatever the reason, it is a significant part of the history of this case that for almost a year the father showed no interest at all in, or commitment at all to, the child, and denied rather than asserted that he was the father. So as well as the responsibility of Rotherham, the guardian, and possibly the court, for not investigating paternity further, a very heavy responsibility for events lies upon the father. If he had shown any real interest in the baby and put himself forward in any way as the likely father, then the true facts would probably have emerged much earlier and the baby would never have been placed with A and B.

 

A separate and distinct question is when the father first learned that the baby was in care. His case is that he learned this for the first time at the beginning of March 2014. He said that he saw the mother’s mother in the town. He asked her where the child was. The mother’s mother said that he was in care and that the mother had lied to him. He then immediately spoke to and told his sister, the aunt, and at his request she immediately contacted the social services. He says that in the first weeks after the birth he had indeed asked the mother if he could see the baby and she had fobbed him off by saying that the baby was staying with her mother or sister. She also misled him into thinking that she was caring for the baby by asking him on a few occasions for money for nappies.

 

To the very end of his evidence, even when recalled and admitting what I have recorded above with regard to his knowledge of paternity, the father remained adamant that it was only around early March 2014 that he first learned that the baby was in care, and that he at once informed the social services and requested that he or his family could care for the baby.

 

 

This last point might be critical – if the father knew that he was probably the baby’s father, he could have legitimately kept quiet not to rock the boat and jeopardise his relationship with Miss D UP UNTIL he knew that the baby was in care, whereupon it was time to speak up.

 

The Court concluded that his evidence that he had not known until shortly before his sister approached Social Services should be accepted.

 

I have to decide whether I am satisfied on a balance of probability that the father knew that the baby was in care as early as about April 2013, as the local authority allege; or only in early March 2014, as he himself claims. On this issue there is force in the point Miss Ford makes on the third page of her written closing submissions dated 21.11.14, and as she elaborated orally. The father’s case is that he first learned that the baby, of whom he was likely to be the father, was in care in early March 2014. He immediately contacted the social services (initially via his sister) and has, unquestionably, strenuously sought the move of the child to live with him or his family ever since. It was only later that he learned that the child had actually been placed for adoption or that there was a current application to adopt him. So, as Miss Ford puts it, his conduct by contacting social workers in March 2014 can only be explained by his having only recently learned that the child was in care. No other event or trigger has been identified as to why, having done nothing and shown no interest for so long, he suddenly did then make the contact which he did. Miss Ford asks, rhetorically: Assuming that he had known that the child was in care from, say, mid or late April 2013, why did he suddenly do something and with such resolve in March 2014? She submits that the activity in and after March 2014, for which there is no known other explanation, is really only consistent with his having recently learned in March 2014 that the child was in care.

 

I take into account the demeanour of the father in the witness box when he was recalled. At the same time as now admitting that soon after the birth the mother herself had told him that he was the father, he maintained his account, apparently convincingly, that he only knew that the baby was in care almost a year later, and said that the social worker must have misunderstood him. I also accept the force of Miss Ford’s point as described in the previous paragraph. There was room for misunderstanding, and I am not satisfied on a balance of probability that the father knew that the baby had been taken into care earlier than early March 2014, when he took action at once.

 

 

 

So, that’s how this situation arose. The person who had been treated as the father in the care proceedings was not the real father, and the real father had not known of the care proceedings because nobody had thought to tell him. The only person who knew both key sets of facts was the mother, and she had taken no action.  [The maternal grandmother might have known, by my reading, but whether that is definitive is hard to say]

 

 

The judgment then talks about the various assessments, but the long and the short of it is, the options available were to make an adoption order to A and B, or to remove the child from A and B and to place with the paternal aunt.

 

A and B were clearly very good, capable and loving people, well capable of caring for the child. The Judge said this about them :-

 

 

Even before C was matched with them, A and B prepared themselves very thoroughly as prospective adopters. They read widely. They attended courses. They learned about the importance of attachment, stimulation and other parenting qualities. This stood them and him in good stead. I accept unreservedly the current assessment by Miss Lancaster that A and B are the “perfect” adoptive couple. She said in her oral evidence that in spite of all the challenges they are remarkable people. They are excellent adopters doing a remarkable job. If she could paint the ideal adopters they are not far from the mark. They have an excellent understanding about attachment, about which they were trained. The have a very good understanding about the impact of loss and trauma. They have great appreciation of the kind of parenting styles that work well.

 

I accept unreservedly that C is now very well attached to A and B. He feels, and is, secure with them. They provide an excellent home. They are also undoubtedly deeply attached to him. B said very movingly “He is such a happy, settled, loving little person who knows who we are … I am so proud of him. I love him so much. I will always love him. He will always be my son.” C is also a familiar and much loved member of the extended families of both A and B.

 

There is no doubt that if the true paternal family had not emerged and put themselves forward in the way that they have, an adoption order would have been made several months ago.

 

 

And the Aunt?

My own impression of the aunt was very favourable. She is much more articulate than her brother, the father. She appeared to be thoughtful and flexible, and insightful and understanding of the issues in this case. She said that she has prepared her own son, G, for the possibility that he might be joined by another, younger, boy. She talks to G about C, and G would not be surprised if C became part of their family. She said that G himself is a lovely boy, very caring and very sharing, who plays very well with other kids. She paid generous and sincere tribute to A and B although of course she has never met nor seen them. She said she was just so grateful for what they have done. It is beautiful. They have taken very good care of him.

 

 

Even the social workers who were supporting the child being adopted by A and B were not critical of the aunt, just feeling that the child ought not to be moved.

 

 

[I will quickly note that the Aunt and Miss D were represented pro bono by counsel and solicitors, which was an extremely helpful and generous thing]

 

Holman J made it plain at the outset and repeatedly, that he was not approaching the case in a narrow “nothing else will do” manner, due to the recent authorities, but in weighing everything up as to what order would best meet the child’s needs throughout their lifetime.

 

 

The legal framework as I have so far described it is agreed by all the advocates in the case, including that I must apply all the relevant parts of section 1 of the Act. In their written skeleton arguments and written final submissions, as well as in their brief oral final submissions, there has been some debate between the advocates as to whether, in applying section 1, I should adopt the approach that I should only make an adoption order if “nothing else will do”. This led to some brief examination of the judgments of the Supreme Court in Re B (a child) [2013] UKSC 33, and some later judgments of the Court of Appeal in which that court appears to have been exercised by what the Supreme Court actually meant by what they said in Re B (most recently the judgments delivered by the Court of Appeal only two weeks ago on 18 November 2014 in CM v Blackburn with Darwen Borough Council [2014] EWCA Civ 1479).

 

In my view that is a debate and territory into which I need not and should not enter. The legal and factual situations in those cases were different. In the present case, the child has already been lawfully and appropriately placed for adoption with A and B for over a year. A range of rights under Article 8 of the ECHR is engaged. There is a continuing legal relationship between the child and his paternal genetic family, with whom he has a father, grandmother, aunts, uncles and a paternal half sibling, but no current psychological relationship. He has never met any of them. (He also has several cousins but they are outside the definition of “relative” in section 144 (1) of the Act.) In this case the child unquestionably also has a private and family life and a home with A and B, and they with him, for which all three of them have the right to respect under Article 8. With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”. (Indeed Mr Nicholas Power might have argued on behalf of A and B, but wisely chose not to do so, that there could now be no interference with the Article 8 rights as between A and B and C mutually except if “necessary” within the meaning of Article 8(2).) Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires. If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

 

 

 

The parties had all drawn up balance sheets, and the Judge said something that I find very helpful when looking at balance sheets.

 

I have read and re-read those “balance sheets” and all the written closing submissions, and I have all the points listed there in mind. Judges frequently use the language of “balance” and “balance sheets” (and I do myself. I think lists such as the above are indeed very helpful). But the analogy with balancing scales may be misleading. When weights or objects are put on either side of a scale, their individual precise weights are known, or ascertainable. You can put four objects in one scale pan and seven in the other, and the scales will come down one way or the other due to the aggregate of the individual precise and ascertainable weights on each side. In a case such as this, however, none of the factors have precise weights. All that may be said of any individual factor is that, as a matter of judgment, it is more or less important or weighty than another. Mr Power’s list is long on the advantages of adoption and short on the disadvantages. It is not, however, the number of factors which counts but their respective importance. The Adoption and Children Act 2002 does not itself use the language of balance. It requires the court to “have regard to” all relevant matters, including those specifically referred to in section 1(4). The effect of section 1(6) is that the court must then make a judgment (applying section 1(2) and the paramountcy of welfare throughout the child’s life) whether making (in this case) an adoption order “would be better for the child than not doing so.”

 

 

 

I often read judgments from the High Court and thank my lucky stars that I am not, and never will be a Judge called upon to decide between two impossible situations. This was one of those occasions.

 

My condensing of this judgment is not, and could not be, a fair reflection of the deliberation that the Judge undertook. I would urge you to read the whole judgment to get a proper reflection of the complexities of this matter.

 

Nonetheless, you want to know the outcome, and I need to give it to you, so that debate can occur.

 

 

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

 

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

 

The care order made on 2 August 2013 now once again has effect. Rotherham, in whose care C again now is, must engage intensively with all the relevant parties, and file and circulate within three weeks a written care plan setting out their plan for C and how they will implement, in the least damaging way, the process of his move from A and B to the aunt. It is impossible for me or any court to micro-manage that plan and process, and inconsistent with the respective roles and duties of the local authority and the court that I or the court should attempt to do so. If (as I sincerely hope will not be the case) any further resort to the court is necessary, application must be made locally to the designated family judge in Sheffield. A copy of this judgment must be given to, and read by, the Independent Reviewing Officer and all social workers having any continuing role with these families.

 

I have found this decision extremely painful, for I sincerely and deeply appreciate the intense grief it will cause to A and B and to their extended families and friends. But I have not, in the end, found it difficult; and, as I said at the outset of this judgment, it is not one which I reach narrowly or marginally. At the directions hearing in Leeds, when I had read few of the papers (and there were several key documents still to come) and before I had heard any of the oral evidence or argument, I described this as a finely balanced case. By the end, I do not think that it is. I am clear that the welfare of C throughout his life decisively requires that he is not adopted but moves to live with the aunt. It is my duty to make that welfare paramount.

 

 

 

There are a lot of very fact specific components to this case – it is unlikely that another case with exactly these issues will ever appear again. So it is not a definitive ruling for anything other than a case with these particular facts.

 

Nonetheless it is

 

 

  • The first successfully opposed adoption that I have seen since the 2002 Act came into being (and I didn’t find any reported ones going back to the 1976 Act, though I could have missed them)

And

 

  • Potentially significant – here, the assertions of mother and Mr E that Mr E was the father was accepted, and a true father emerged later. That particular set of circumstances (stripped of all of the ethnic features and clandestine affairs) is probably not that unusual. Local Authorities and Courts are somewhat dependent on a mother telling them that there is more than one putative father. Will we see successful challenges to adoption on that narrower aspect? Will we see Courts being more inclined to DNA test putative fathers even where mother is saying that there is only one putative father?
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About suesspiciousminds

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

24 responses

  1. As you say, a very important case. I hope that all prospective adoptive parents and their advisors will take note of the increasingly apparent risks involved in taking a child for a forced adoption. In my experience prospective and actual adopters are rarely given full and truthful information about the natural families. Also, they have little idea about the nature of future family problems that are like to arise – and the lack of support they will receive at such times.

    All prospective adoptive parents should read the recent research by Professor Selwyn and colleagues:

    http://blog.peterdale.co.uk/review-of-professor-selwyn-research-april-2014-on-adoption-disruption/

    Also, increasing numbers of forced-adoptees will ‘vote with their feet’ when they are able, and abandon their adoptive parents and families. This is devastating for adopters (but they are not warned as part of preparation of the chances that this might happen). See link below for a recent vivid example in the public domain.

    http://blog.peterdale.co.uk/a-published-story-of-an-adoption-breakdown-analysis-of-readers-comments/

    • I think it is unfair to slur Rotherham with insinuations about ‘forced adoption’ The way this case was handled seems to have been very good prior to the discovery of the child’s real paternity (and it easy to understand how the mistake was made). When the baby was removed the mother did not engage with the care proceedings nor, effectively, with the local authority. This does not sound like ‘forced adoption’ – she apparently did not put up a fight to keep the baby.

      Also, it is a completely different matter placing a baby for adoption at seven months and placing a child at six years. A baby easily forms a normal, healthy attachment to adopters but an older child, who has suffered unsatisfactory experiences, will find attachment to adopters more problematic. Besides, the child brings recollections of the natural parents which will not be forgotten.

      Your concerns about adopters not being given information seems to refer to the placement of older children and the need to be completely honest with prospective adopters about the complexity of the child’s emotional and behavioural problems.

  2. I am shocked by this case as it is an amazing precedent and changes what I will tell prospective adopters.

    I am an adopter of 4 ( now all adults) and am now a manager in an adoption team.
    This touches me particularly as some of my children were transracially adopted.

    C is described as legally related to his birth father ; unless the court has changed the brith certificate he is biologically related rather than legally related at this point in time and the adopters have PR while he does not.

    I wonder what if any discussion there was about contact in this case.
    The child has both maternal and paternal half siblings and I wonder if the adopters were in contact with the adopters of the maternal half siblings and if so whether that would have been a factor supporting his adoption. Similarly I wonder if the adopters would have considered direct contact with the aunt had an adoption order been made. 2 of my children had direct contact with an Aunt growing up which was beneficial and would perhaps have been a good solution in this case.
    I presume the adopters had no other children but if they had this would also have been a factor to consider.

    My children all have half siblings living elsewhere some of whom they have established contact with now but they have a powerful and enduring brother/sister relationship with each other which is not linked to biology but shared expereince.

    I also wonder what the birth mother’s views were?

    There are more and more cases of opposition to adoption orders and in many of them the birth parent who is not opposing is supporting the adoption plan.

    I actually hope that the new tougher approach to placement orders will mean that any placement orders made now will stand and avoid these heart breaking cases.

  3. After reading this, I also happened upon this in a paper, I do not read but some one sent me.
    I wonder how old this case is and whether it was after BS , but before the recent u turn ?

    ,Judge rules Rotherham toddler should be taken away from ‘perfect’ adoptive couple and sent to live with family of the father who initially showed no interest in him
    Justice Holman said toddler will live with family of father who rejected him
    Ruled that the toddler should be moved from the ‘perfect’ adoptive couple
    Toddler went to live with adoptive parents when he was seven months old
    Five months later, genetic father said he wanted him to live with his sister
    Judge said it was ‘finely balanced case’ but rejected adoption application

    Read more: http://www.dailymail.co.uk/news/article-2862452/Judge-rules-toddler-taken-away-perfect-adoptive-couple-sent-live-family-father-initially-showed-no-him.html#ixzz3L4OHrq4s
    Follow us: @MailOnline on Twitter | DailyMail on Facebook

    • Holman J refers to the recent batch of “nuking nothing else will do” cases, and I believe it was decided in mid to late November. (and he actually in the end said that it WASN’T finely balanced)

  4. This judgment is so alarming there has to be a serious debate about the issues raised. The arguments presented above need to be examined carefully and critically.

    I’m inclined to think the judge has not given sufficient weight to the child’s need for stable and lasting relationships with caring adults. The child has formed an attachment to the prospective adopters and at the age of 20 months would find a move very difficult. Deliberately disrupting this relationship would have a profound effect on his emotional development and may harm his capacity to form trusting relationships in the future.

    The question of the father’s rights needs to be considered against the fact that he did not act as a responsible father when the child was born. He claims to be concerned when he discovered the child was taken into care – but would he have been concerned if the child had been cared for by mother and ‘father with parental responsibility’ who were both white? I’m confused about his ‘concerns’ and why the aunt took the lead in approaching social services.

  5. Indeed – must read and digest and then think about… But good to see Holman J use the term ‘range of options’ not ‘raft’, where he means ‘range’ or ‘variety’ (paras not numbered (why not, plse?) so can’t say where). A modern development (propbably journalistic) of ‘raft’ always seems a bit silly. Thus it is used to mean a substantial range or variety; where the original concept is generally very small (probably (1) made to seem smaller by the number of people it may have to contain and (2) acually smaller as bits drop of).

    • The paragraph numbering no longer works on WordPress when you cut and paste, so where I use the numbering, I have to do all of them manually – and this one I was in a hurry to get it out there so that people could read it.

  6. Thank you for this splendid digest. So useful

    I need a walk to fully process the ramifications. Will this mean prospective adopters should not consider a child if Dads DNA is not confirmed? How long should prospective adopters wait before applying for adoption order? Often they (sensibly) wait to settle and embed the child so they know what adoption support will be required: it’s so much easier to negotiate before the Adoption Order, but this judgement raises risk of removal if a birth family member pops up later.

    The adopters demonstrated compassion, kindness and put the needs of the child above their own grief and distress. How typical. I wonder if they would consider adopting again?

    Also it’s regrettable that Social Worker and GAL were named in the judgement. That serves no purpose. Naming and shaming individuals in this way puts them at risk of public abuse and criticism by the ignorant. Professionals have a tough enough time. Public praise and private criticism is much more fruitful.

    • There are two schools of thought on this judgment :-

      1. That it is amazingly fact specific and these precise circumstances will never arise again.

      2. (my own view) that when you strip it down to principles, what is involved here is a man that everyone took to be the father, but wasn’t DNA tested. And then when the real dad later turned up and either he was good enough or could find a family member who was, the Court considered that it wasn’t even finely balanced to remove from adopters and place within the family. THAT, is less rare. And there are an awful lot of cases where mum and ‘dad’ both say that ‘dad’ is the dad, and as there’s only one candidate for paternity, nobody bothers with a DNA test. That now looks risky for adopters.

      [Also, worth noting that the Court of Appeal have backed the President’s decision in Re C “no Court would contemplate moving a child who had been with prospective adopters for two years” and this case shows that they WOULD contemplate it, and would do it for a child who had been with prospective adopters for one year; so we are getting a sense of where the grey area now is. Timing of the application now becomes a critical decision ]

  7. Personally, I think it is absolutely the right decision. What is staggering and really needs to be highlighted is that this child must have been seen by numerous childcare social workers, fostering and adoption social workers. He would have had had an adoption medical, been matched, seen the IRO at least 3 times, lived with a foster carer etc and NO-ONE even asked the question. A DNA test with a putative father in prison would have been simple and cheap. Why was the maternal grandmother not seen and how did a Guardian manage to recommend Care and Placement, with lifelong implications, without seeing anyone at all. A brief glimpse of the baby asleep is really scandalous and shoddy practice. A shining example of the kind of sloppiness that should have no place in determining the future of a child.

    • A staggering level of ignorance and credulousness allowed the professionals to be taken in by the ‘putative’ father’s odd claim to be of part-Burmese heritage!

  8. stella aka toni macleod

    what a fantastic judgement ! 🙂 for once a decent judge with common sense !

    Stella x

  9. Bravo – About time a spanner turned up in the relentless conveyor-belt of non-consensual adoption.

  10. With respect to all those posting who obviously have very strong opinions about non-consensual adoption – and taking account of the criticisms of the social workers concerned – isn’t the basic question here about balancing the attachment of C with his adoptive parents against his long term future with a family genetically related to him and who would have similar colouring and features. I will read the whole judgement.

    • That’s a remarkably good summary of what the case is about.

    • I agree with you about getting the balance right. But are you suggesting that the aunt who is black and has a genetic relationship with the child has the inherent qualities required to care for a mixed race child? Their colouring and features would be similar but different. The other half of the child’s genetic make-up is white – something he shares with his adoptive parents.

      The judge attaches much significance to the genetic relationship with the aunt and less to the child’s current attachments. (He was not apparently concerned about the aunt’s extended family being geographically far apart and therefore unlikely to be closely involved in the child’s upbringing.)

      • What I believe would be helpful is for the judge to have explained his reasoning further as to why he put so great an emphasis on the ( purely genetic ) family ties. I certainly don’t find his reasoning convincing. I have read the judgement and I will try to find time to read it again, but I would have thought that this is a case which calls out for further deliberation.

    • I’ve been mulling this over and reflecting on the very different parenting styles of these two families… The adopters have a traditional family structure with a mother AND father, and they may also have a significant level of support from their extended family. The genetic family has a much looser family structure, where marriage is deemed irrelevant, and the upbringing of children tends to be shared with the extended family, which in this case is geographically spread out.

      There are obvious problems with the aunt living in the Home Counties and hopefully she will soon move north, as planned, so that social workers in Rotherham can engage intensively with her. I note that the length of time taken to assess her was considerably shorter than the time usually taken to assess and prepare adopters – so further assessment of her circumstances and the family relationships would therefore seem appropriate before the child goes to live with her.

      This situation must be heart-wrenching for the adopters. However, it is wrong for the guardian to suggest that the child’s distress over the move could be ameliorated by ‘theraplay’ – he is far too young for this kind of direct work.

      Finally, it is not known whether the birth certificate has been changed. Presumably, clarity about father’s legal status would be required before the care order could be discharged?

  11. Pingback: When can the court agree adoption is necessary? | Child Protection Resource

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