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Adoption – here we go again?

The Court of Appeal have found the reverse gear to their reverse gear (from the original reverse gear of Re B-S).  Sort of.

I actually think this is just the Court of Appeal reminding Judges that in cases where Placement Orders are being made, it is actually a requirement that the judgment explains why.

 

There have been a few cases where the judgments have been flawed and the Court of Appeal rolled up their sleeves, got under the bonnet of the case and got oil on their forearms in order to set out what the Judge must have meant, but omitted to say. This wasn’t one of those.

Re J (A child) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

 

It is pretty bad that the Court of Appeal remark of the judgment that it barely contains any information that emerged during a three day final hearing or any analysis of the evidence that the Court heard.

The judgment is contained within 38 paragraphs and runs to some 16 pages. Two thirds of the substance of the judgment consists, however, of verbatim recital by the judge of sections within the local authority chronology and the parenting assessment

The judge’s approach to the content of the assessment report was to select substantial passages from that document and simply quote them in narrative form within his judgment. From time to time the judge punctuates these extensive quotations with a comment and, on three occasions, with respect to specific matters the judge simply states that he “rejects” or “accepts” one account or another. No reasons are given for such acceptance or rejection and no references are made to any oral evidence given to the court on any of these three specific points during the three day oral hearing. Indeed, the judgment does not contain any account at all of the oral evidence. The judge’s quotations with regard to the parents’ capacity are all drawn from the written report alone.

This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.

10…the judge gives a brief outline of the legal context within which he was required to make the necessary decisions. He did so in these terms at paragraph 4:

 

“I recognise immediately that to accede to the Local Authority application I must conclude that there is no other option open, no other option exists for the welfare of this child other than to make the order that the Local Authority seek, it is a position of last resort and it is only a position I can adopt if nothing else remains. It is a draconian order that the Local Authority seek, I have to adopt a holistic approach measuring the pros and cons, the child has a right to a family life with birth parents unless his welfare and safety direct that I am forced, and I underline the word forced, to accede to the Local Authority application.”

  1. Insofar as it goes, the judge’s description of the legal context cannot be faulted. It is repeated towards the end of the judgment at paragraph 36 in these terms:

    “Again I repeat I cannot concur with the Local Authority application unless what they say establishes a case of necessity for adoption, nothing less than that will do, intervention in a child’s right to a family life if at all possible should be through the birth parents or extended family, is it possible that the Local Authority could provide a package of support to maintain the child in the family?”

  2. Again, that account by the judge is entirely in keeping with the current case law regarding these important decisions. The criticism made by Miss Fottrell and Miss Hughes is that in all other parts of the judgment the judge signally failed to operate within the legal parameters that he had described.

 

It is of note that the Court of Appeal formally acknowledge and approve the President’s judgment in Re A about thresholds, giving them even more weight if any were needed.

 

In fact, as Lord Justice Aikens not only approved the points in Re A, but provided a distillation of them, this authority bolsters those points considerably. You won’t get far re-arguing those points with the Court of Appeal.   [Although I note with heavy heart that ‘nothing else will do’ is making a comeback, after I thought we’d reverted to Baroness Hales full paragraph]

 

  1. This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (a child) [2015] EWFC 11. I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case. It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases. As the judgment of the President in that case is necessarily long and detailed, I have respectfully attempted to summarise below the principles set out, none of which are new. I venture to give this summary in the hope that advocates and judges throughout England and Wales who have to deal with these difficult care cases will pay the utmost heed to what the President has said. Advocates and courts are dealing in these cases with the futures of children, often very young and therefore very vulnerable. They are also dealing with the futures of parents who may be imperfect (as we all are) but who often dearly love the child who is at the centre of the litigation. Separating parents and child by placement and adoption orders must only take place if it is proved, upon proper evidence, that “nothing else will do”.
  2. The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.

    ii) If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.

    iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.

    iv) The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)

    v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority. “The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.

    vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.

    vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

    viii) In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 RLR 625.

I think that is an excellent distillation, and much more user-friendly than the original.

Ms Daisy Hughes drew out a particularly good point, and one which I expect to see appear again  (I applaud her work here)

On behalf of the father, Miss Daisy Hughes draws attention to the fact that there is no reference at all to the father’s evidence in the judgment. In this context Miss Hughes relies upon the case of Re A (A Child) [2015] EWFC 11 in which, at paragraph 6, Sir James Munby P states:

“I add two important points which I draw from the judgment of Baker J in Devon County Council v EB and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?”

In short terms, Miss Hughes submits that the approach that is described there by The President is plainly correct and that the judge in the present case failed to conduct any effective analysis of the evidence in the sense of giving any regard to the evidence from either of the parents. To the extent that the judge made any findings, Miss Hughes relies upon the complete absence of any reference to the father’s evidence to make good her submission that this judgment falls well short of what is required.

In this particular case, the parents were disputing the threshold and the order sought was the most serious that the Court could make. So it was imperative that the Court gave a judgment that resolved the factual issues and set out what harm the Court considered the child was suffering from or at risk of suffering, as the ‘baseline’ for considering what orders might be necessary.

 

The trial Judge had failed to do this. The Court of Appeal expressed some doubt as to whether, as pleaded, threshold was capable of having been met.

 

  1. The parents did not accept that the facts of the case justified a finding that the threshold criteria under CA 1989, s 31 were met. On the facts of this case, and, in particular, on the basis upon which the local authority had chosen to plead the threshold grounds, the parents’ stance was not without merit.
  2. In addition to the threshold document, the local authority analysis was summarised in a witness statement made by the key social worker in May 2014 in these terms [page C166 paragraph 38]:

    “It is my professional opinion that [mother] and [father] have demonstrated no positive change since the initial removal of J from their care, and neither have they accepted the local authority’s concerns, throughout Social Care involvement. This refers to the concerns raised regarding Domestic Violence, J’s exposure to a lack of routine and consistency, their own levels of immaturity and the impacts of [father’s] substance misuse. It is my professional opinion that many of the local authority’s concerns relate to the lack of maturity of the couple.”

    In that paragraph ‘Domestic Violence’ must, even on the judge’s findings, be confined to the assault a year prior to J’s birth, clothes being thrown out of a window in March 2014 and the mother’s reported complaint in April 2014 of controlling behaviour and punching. The lack of routine and consistency arise from the parenting assessment. The father’s admitted cannabis misuse does not relate to a time when either parent had the care of J. Immaturity is undoubtedly an issue but, as my lord, Lord Justice Vos, observed during submissions, a presumption that no young person would behave other than perfectly is unsustainable.

  3. To my eyes, the content of this central paragraph within the social work statement begs the question whether this statement of the local authority’s ‘concerns’, even taken at its highest on the basis of the factual evidence, is sufficient to support a finding that it is necessary for J to be placed permanently away from his parents and adopted. In that respect, and with particular regard to what is said about domestic violence, I readily endorse the words of the President in his judgment in Re A (see above), which was handed down in the week prior to our hearing where, at paragraph 16, he stressed the need always to bear in mind the approach described by His Honour Judge Jack in North East Lincolnshire Council v G and L [2014] EWCC 877 (Fam):

    “I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

  4. There was a need for the judge to make clear and sufficiently reasoned findings of fact with respect to any disputed issues. There was then a responsibility upon the judge to identify whether, and if so how, any of the facts found, either alone or in combination with each other, established that J was likely to suffer significant harm in the care of either or both parents. Finally it was necessary for the threshold findings to identify (at least in broad terms) the category of significant harm that the judge concluded was likely to suffered by J.

 

The Placement Order was over-turned and the case sent back for re-hearing before a different Judge.

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About suesspiciousminds

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

16 responses

  1. As I say probably too often Munby and Mostyn are two judges who got it about right ;though Mostyn was the clearer and less ambiguous of the two !
    page !

    Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course is possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails” – Munby LJ in Re BS

    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

    • Somewhat important that when you link to judgments, you don’t use ones that were overturned on appeal… And actually, when you closely examine the legislation of other European countries, almost all of them do have some provision for permanent removal of a child from their parents by the State, sanctioned by a Court. They certainly use it a LOT less than the UK, and some barely use it at all, but the line about only 3 out of 28 countries allowing non-consensual adoption doesn’t really stand up to scrutiny.

      • S you say Andrew that Mostyn and Baroness Hale were both wrong about only 3 countries using adoption without parental consent?
        Me I’m respectable ! I’m on the side of the judges !

      • Having looked at the detail, yes, I don’t believe that claim is right. I couldn’t find a European Country that DIDN’T have something which was the functional equivalent of non consensual adoption. Is it called adoption? Not often. But is it functionally the same? Yes. But it is absolutely not used in the same volumes as England, and other European countries are not as fixed about the idea of ‘permanance’ as England.

      • Ok, so I’m going sideways, but I am now curious ->

        Am I correct in thinking Bailii lacks any form of equivalent facility to those of Lexis/ Westlaw for ascertaining if indeed your treasured case has been upsurped?

        Does anyone know therefore the best method for persons without access to the same (eg parents) to go about it?
        Sometimes placing the neutral citation back into search will locate the case on its appeal, but not always. (having now played around with this to test a few)

      • You are quite right, that does make things a bit harder for litigants in person or McKenzie Friends, who don’t have access to the paid websites that store reported cases (where they would show that the case you are looking at has been overturned on appeal).

        I do try to link and tag the original case name in with the appeal, so I would hope that searching for the case here (or on a google search of suesspicious minds + case name) would show it up. But I don’t cover every single case, so it is not perfect.

        One thing you could do on Bailii is to search in the appeals database looking for the name of the original Judge, and focussing on the period of when the original judgment was given to two years later. That should turn up all the Court of Appeal cases involving that Judge in the most likely time for any appeal to have been heard. If nothing shows up, you could be reasonably confident that the case has not been appealed.

  2. It is obvious to me that poor social work practice is at the root of the problem in this case. The facts presented to the ‘trial Judge’ were based on social workers’ assessment of the parents but much of this came from previous history, not on the current circumstances. Furthermore, the Judge failed to conduct any effective analysis of evidence from the parents presented in court.

    What is lacking is any information about how the parents relate to the child, the nature of their relationship now, their living arrangements, and details of the practicalities of whether, or not, they would be able to care for the child in the future. This kind of assessment should have been carried out a long time ago and there are assessment tools to assist social workers in this task. The use of a foster carer to support the mother and child was OK but the task of the foster carer would have included assessment and giving feedback on how well the mother cared for the baby. It is totally unacceptable that this kind of information – about individual family members and their relationships – is missing from a social work assessment.

    • Ashamed to be British

      See Suess’ blog on Social Engineering, this is how it happens, then the poor parents are told it’s too late now, the child is settled with potential adopters, it wouldn’t be fair to them, no point in doing assessments now … sad isn’t it

      • Sad that another child in Rotherham has been so poorly served. But, on a more positive note, the council’s problems have at last been recognised and Commissioners sent in to run it – although children’s services in Rotherham will obviously take time to recover from the fall-out of so many recent scandals.

      • Repeat failures should mean the stripping of their departments, lessons are not learned and I for one am sick if hearing the lip service, only for them to fail again and again, if you’re not fit for the purpose then let someone who is do the job

  3. Here suespicious minds you sum up the whole problem ! Laws are pretty useless if judges continually find ways of avoiding applying them correctly !

    “This Judge also did something that I have complained about (not with my own Judges, but because I read the published judgments that go up on Bailii) where it appears that simply setting down the law and the rigorous tests to be applied has become a substitute for actually engaging with those tests. The Court of Appeal in Re BS deprecated the practice of stock phrases being used as ‘judicial window dressing’ rather than Judges actually engaging with those ideas and applying them to the facts of the case, but if anything since Re B-S the published judgments on Bailii just show that the stock phrases have just become stock paragraphs.”

    Yes Andrew you hit the nail on the head this time !!

  4. Pingback: Adoption – here we go again? | Children I...

  5. Are Judges incapable of forming a proper sentence? Or is it just the transcribers (if that’s what they’re called) who are thick? It’s a Local Authority ‘seeks’ not ‘seek’.

  6. Andrew , if you do not accept Mostyn ,Munby,or Baroness Hale on the rarity of forced adoption in Europe ,will you at least accept that the UK is THE ONLY COUNTRY IN THE WORLD where hundreds of mothers flee abroad every year to avoid forced adoption.It seems incredible that safe houses and helpful contacts have had to be set up in Ireland ,France,Belgium,Spain,and other States to help UK parents prevent the forceful adoption by strangers of their babies and young children.

    • I would certainly accept that. I completely accept that adoption is rare, almost to the point of unheard of in many other European countries.

      I would also accept that whilst other European countries have tucked away in their legislation the power to in effect adopt a child without parental consent, England and Wales is the one that uses this power not as a rare, peculiar and exceptional outcome, but as part of an underpinning philosophy of family justice system.

      As Adam Smith explored in the presentation we did together, there are some very important differences between England and other European countries which leads to those things.

      In England we

      1. Don’t have the same strengths of extended families as say Italy, Greece and Spain (I’m not meaning individual families, I mean as a generality, extended families are closer, provide more support and sort things out within the family rather than the State becoming involved)
      2. Don’t have the same philosophy that higher taxation should provide services for those in need that say the Nordic countries have
      3. Have a more patrician attitude (the State knows best) than many other countries
      4. Have a dislike/distaste for state-run orphanages (the solution in the Baltic countries)
      5. Have a position that people should be helped for a short period and then stand on their own two feet (whereas the Nordic countries accept that some people might need ongoing help and support)

      and that taking on board any of the alternative systems used in the other European countries isn’t as simple as just taking their model and implementing it here- their models are based on entirely different social structures that underpin them. I’m not for a second saying that the English social structure is superior (I’d love to live in an England that was much more like Sweden or Norway, but it isn’t something that would happen here)

      Those other countries can keep children within the family because they provide better services for longer or because families come together and solve the problems internally, or alternatively they accept that infants who can’t stay with their parents will live in institutions rather than with families.

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