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Forthcoming Court of Appeal judgment on adoption

We know that there is one coming, because the President told The Times (sadly behind a paywall) that there would be one coming out this week in which the Court of Appeal would clarify Re B-S. The Times article is in the context of the “crisis” in the lower adoption figures – that “crisis” is itself in the context of adoption figures having gone up 26%.

The Times, you may be aware has moved from the Camilla Cavendish line of secret oppressive family Courts into pro-adoption.


We will have to wait and see what the President says. I suspect the direction of travel can be read from recent Court of Appeal judgments – my guess would be that all of the rigorous demands on social work evidence and a comparison of all of the various options will remain.  But that there will be clarification that Re B-S never intended to raise the bar or heighten the legal test.


The language in the Times piece talks about Courts being satisified that adoption is “the best option”  which is quite a distance from “last resort” never mind “nothing else will do”


If Re B-S was being misunderstood, it seems odd that it has taken a year and a half for the President to speak out. He sits in the Court of Appeal, he has brother and sister Judges routinely hearing appeals, he gives speeches and judgments all the time, he has his View from the President’s Office, all of which have been silent.


The closest we have come until now, was this Press Conference in April 2014

Click to access munby-press-conference-290420141.pdf

Philip Hoult from Local Government Lawyer. The question I have is recent rulings on adoption from the judiciary implies that what’s said, from the steer, that adoption should be a last resort where nothing else will do. The government is saying to councils, “We want you to place more children for adoption,” and they’re threatening to remove local authority powers if they fail to do so. Do you have any advice for councils in that situation?

JM: Well, I stopped giving advice when I left the bar 14 years ago. All I would say is that it is the Supreme Court, very recently in a case called “Re: B” which used the phrases which you’ve just mentioned. Last resort and so on and so forth. Under our system Parliament makes the law in passing a statute. Parliament, I emphasise; not the Government. It’s Parliament that legislates. It is for the  judges to decide what the statute means. The Supreme Court has ruled what it believes the statute means and under our system that is the definitive judicial view but of course under our system the relevant statutes can be changed as Parliament wishes to do so. I’d be foolish not to acknowledge as I do that there is a clear tension between what the Supreme Court said in “Re: B” in I think the summer of last year and what the Government had said in guidance which it issued only a few months before in the spring of last year, the tension being that whereas the Supreme Court said that adoption is the last resort, the Government, as I recall in the guidance it gave, said that local authorities should get away from the idea that adoption is the last resort. So there is a tension there but under our system Parliament makes the law; the judges interpret the law and if the Parliament does not agree with the judges’ interpretation of the statute they passed, then the remedy is for Parliament to change the law. In saying that I think I’ve acknowledged that there is that tension there. But I appreciate that on the ground, as it were, for the directors of social services; for the social workers dealing with adoption cases; it must be slightly difficult to know exactly what they should be doing given that tension.


It does seem to me that the President is explicit there – there was a tension between what the Courts were saying in Re B and Re B-S and the pro-adoption policies of the Government. And the President was explicit – if the Government disagree with the judicial line, they must change the law.


So will the President hold firm, or is there a change coming?  (I know where my money is going. I suspect we are about to learn that we have always been at war with Eurasia)


I can’t cut and paste in the entireity of the Times piece, due to copyright issues, but if this bit is accurate, it really troubles me


Officials in the Department for Education made a series of pleading phone calls to heads of local authority children’s services departments telling them that the judge’s intervention had been misinterpreted.

Perhaps that isn’t right. But if it is, is that the way for judgments to be interpreted? Is that the way for Government to approach judgments that they don’t like? *



*( well, given that the Lord Chancellor just lost the book ban judicial review, but isn’t reversing the policy until after Christmas to stop prisoners getting books as presents for Christmas, maybe it is)


About suesspiciousminds

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

12 responses

  1. Why is it in this god awful situation of adoption do we see that it is more about push,rush, swerve and swivel to get children adopted, to me this past few weeks debating about this it seems the upshot is that “Get kids adopted by any means” forget the judiciaries stance on how it should be achieved but most of all forget that these are families, children and parents whose lives we are about to destroy.

    What on earth caused this mantra, okay, there is some 4,000 children waiting for adoption placements, how does over subscribing the system makes things better for the children’s lives, how does the want and destruction makes the families lives better.

    Once all the children have been adopted then what?

    It is a simple question, no doubts there are no answers to it either, do we then see midnight raids we saw in the late 90’s early 2000’s where hordes of children were removed from their beds, like what happened in Rochdale and such.

    Why oh why do people who make decisions never see the other side of the coin, the Re.B and Re.B-S rulings of last year simply showed to the general public how thorough these matters now have to take, what is so wrong in that, now we see that oh wait, we were not right in the judiciaries decision making that the political elite and a few myth busters need to have an all out war and control the mantra which truth be told they simply do not have a front row seat, so in reality whether it is the myth busters of “insiders” at the DfE to make decisions blindfolded is wrong, or Plainly Wrong, depending on the debate.

    Did Re.B and Re.B-S really have an impact or reduction to the adoption process, my case load says it did not make a difference, is it plain for all to see that the DfE have simply thrown the toys out of the pram because it was not Concorde flight to the US as it was previously but now it is a slow boat to China.I would take China any day as long as the ultimate decision was the right decision.

    • That sums it up nicely.
      It’s not just adoption cases though, what you’ve written covers every case, public, private, adoption or returning the children … The ‘think before you act’ mantra needs to start in that lil old office loooong before proceedings, that’s the true meaning of ‘every child matters’

      Following closely …

    • I agree with much of what you say. Fast and “simple/simplisitc”, isn’t always right. Having said that, slow isn’t in itself good.

      We need clearly set out rationales & justification for adoptions, which can be properly reviewed and challenged, within a clear legal framework.

      We must also ensure that LA’s and other professionals keep in mind that this is not an academic exercise, but instead one impacting children’s lives, along with the lives of birth and adoptive parents in the most profound of fashions.

      In my view, too often in the past things have been allowed to drag out for months and years, for no other reasons than inefficiency and lack of any sense of personal responsibility to get on with things. This in itself compounds the already traumatic nature of the process.

      There have also been some gross miscarriages of justice as a result of social workers, some with children adopted when they shouldn’t have been, others when they have been left in the care of parents who treated their children worse than we would expect animals to be treated.

      A high or low number of adoptions isn’t in itself good or bad.

      The question is how many cases where children really need new parents, are being delayed or shelved due to flaws in the process, and how many cases are adoptions happening when they shouldn’t?

      Based on my personal experience, I see too many kids who end up in long term fostering, LA homes or back in deeply traumatic/dysfunctional homes, because the whole process is badly executed. Others may disagree, but I can only speak of what I have seen.

      What is unacceptable is bias, bigotry and abuse of children, compounded by poor, unaccountable processes.

      To my mind the President is to be applauded for his efforts, even if there has been some missteps along the way.

  2. I suspect there will be:

    * a formal statement that the Re B-S judgement didn’t change the legal test,

    * a position that a number of decisions over the last 18 months, which did suggest a change of test, were “misinterpreted” (leaving as an exercise to the reader to figure out how this could have been the case, to be filed along side tasks such as angle trisection).

    * a series of new judgements that confirms the first position and quietly consigns to history the judgements in the meantime.

    * a general clamp down on a whole range of bad practice on the part of LA’s including compliance with direction orders, the need to undertake properly balanced assessments, a willingness to change views in the face of facts which show earlier conclusions were wrong, the need for legal aid to avoid injustice, etc.

    Overall this will represent a messy way of achieving the good outcome of making adoption something which requires very careful consideration and fair process, rather than just being based on the strongly asserted (but perhaps unjustified/unjustifiable) views of a few social workers.

    Was this the best way to get there?

    I don’t know.

    I do know I have a lot of sympathy for the President, because it is always hard to change entrenched positions, and I think we _will_ end up in a much better place than where we started.

    • If only Bet Fred covered judgments, you were pretty much spot on with all of your predictions. My prediction in turn is that people will just skim Re R, say “Re B-S is dead” and go back to the same old mistakes.

  3. To be fair, I’ve never met a child who’s come out of care unscathed either, in fact I’ll go as far to say I’ve never met any person (including birth parents, children, adopters and foster carers) who don’t suffer some sort of trauma after involvement with social services, regardless of the outcome.
    The system is broken, literally shattered into a billion pieces, everyone gets hurt.

    I’d rather wait 2-3 years to make the right decision, than wait 18 years to discover I’ve made the wrong one, there are some seriously dysfunctional families out there, however, the children fare better being left with their parents than being removed, doesn’t that just add to the dysfunction? Who cares if the house is a bit messy or there’s no carpet down? The kids don’t!

    In a ‘damned if you do, damned if you don’t’ situation, there’s going to be calatarol damage…let’s create a scenario…we’re back to WW2, shall we remove the children who have no food? No carpet? No house? These children are at risk of being starved, bombed, made homeless, no possessions, toys, clothing. You’d have to remove EVERY child, there’s a war on, they’re all at risk. Fast forward to the 80’s, 90’s … Those children have survived war, teen years, middle age and old age, they’re okay, because they muddled through together but most importantly, they had each other.
    We are in the middle of a war, one that has to be resolved eventually, with casualties along the way, unnecessarily

    • I can but agree with your comment on the impact of social services involvement.

      Far too often the real needs of the children get side-lined, and birth parents, adopters and foster carers are all caught in an uncaring system where there is no personal responsibility, everything takes an age to happen, and mistakes are never corrected.

      Sadly there are also far too many foster carers who are in it simply for the money, and have a “cash for kids”, “stack ’em high” attitude (I say that as a foster carer myself, though hopefully one who does the job for the right reasons). And most “children’s homes” are simply holding grounds until the kids reach their majority or manage to run away and not be found.

      Personally I’ve been in a major dispute with an LA for the last year, and the eventual judgement may well make it onto this blog. The arrogance of all the “senior” players from the LA has been simply breath taking.

      I suspect the only thing we disagree on is whether the best solution is ever adoption, but let’s leave that for another time.

      Having said all that, I’m still glad there is at least some effort to shake things up and bring some transparency to what’s going on. Too much is still hidden under the false cloak of protecting the children’s privacy, when it is actually about allowing poor practice to go unpunished.

      • Ashamed to be British

        If your dispute is about poor practice oing unpunished, good luck with that, if you pull it off, you’ll be a hero to many, Jerry will be able to tell you himself that he had a watertight case that … well, just leaked, and none of us can see why or how.

        I assure you I am not against adoption, many parents are not ready for children, they are not fit to be parents (thinking babyP, Victoria Climbie, Daniel Peltza etc) – these children deserve a life without fear, torture, having their back snapped over some thugs knee … sorry, had a bit of a wobble there *shudders*
        What I am against is forced adoption, there is no need for it, none, I can hear you saying now “Oh but some really bad parents would keep their children and still kill them, prostitute them etc etc” yes they would, but, social services are there to help these parents, support them and teach them to learn empathy and basic parenting skills, WHY can’t that happen? When it does happen it’s highly successful.
        It may take 2 years to get it through, it may take mother and baby units, however I would like to see this course of action with the end result being a happy balanced family, it would cost no more than the endless court cases, adoption parties, Be My Parent publications (which I think are vile!) and search for adoptive parents, without setting the parents up to fail, putting the parents ‘in care’ with their children is a solution, and a means to an end … forced adoption is an end, until the child/ren reach 18, by which time social services are long gone, leaving a trail of destruction in their wake.

      • AtoB: I would love to believe all parents can be supported to look after their children. I’d also love to believe all criminals can be brought round to see the error of their ways and “go straight”.

        The problems is I just don’t think this is possible, especially not in a timescale or fashion that works for the children involved.

        Would you have a social worker being with the parents/children at all time? If they saw abuse about to occur, would they be able to allowed to physically intervene? Would they be allowed to effectively hold the parents/children under house arrest?

        At the end of the day I think we can only go so far, before the children are removed.

  4. Ashamed to be British

    Yes, house arrest if that’s what it takes, keeping the family together should not have a price tag

    • What about the case where a parent surprises the person(s) you’d have providing 24/7 supervision, and manages to physically harm the child, witnessed by the “guard”? Would you allow forced separation then, or insist that the child keeps being returned to their care, even if they are repeatedly hurt?

      Similarly what limits are you willing to place on the parents? Is physical restraint allowed? Are they allowed to walk away? What happens to the children then? Do you keep both parents under house arrest even if they have separated or if it was a one night stand? What about if you’ve got a father who has multiple kids with different mothers? Do they all get forced to live together under house arrest?

      I’ve no problem with reintegration being the initial goal, I just don’t accept that every person can be pushed into being an acceptable parent against their will.

      I also can’t accept that forced, permanent removal is never an option, especially when the “price” of not doing this is in ongoing harm to the children.

      • Anyone who harms a child should be thrown into jail, and no, they don’t get their child back, you do not hurt anyone who is unable to defend themselves/vulnerable. I suppose in regard to one night stand type scenarios, whichever parent wants to be a parent, is the one who gets the chance, like you say you can’t force anyone to want to parent (within reasonable diverse parenting tolerance of course) but if they don’t want to, I doubt they’d agree to try the reunification in the 1st place.
        But what does need to happen is NOT to write parents off at the first mistake (unless it’s a massive/dangerous one) we are people, people are not perfect, who are social services to demand that of anyone

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