Having gone 13 years without a successful opposition to an adoption order under the Adoption and Children Act 2002 (until Holman J’s case in December last year) and now we’ve had two in two days. (Re S and T 2015 and this one)
Re LG (a child) 2015
In this case, the Court was being asked to consider an application by a parent for leave to oppose an adoption application. The Court granted that application, and as a result the prospective adopters withdrew their application, and hence the child has gone to live with grandparents. So the judgment didn’t actually finalise what the Court would have done if it had gone on to a fully contested adoption (but I’m sure that the prospective adopters saw that the writing was on the wall and didn’t want to subject themselves to further pain and subject the child to delay)
It was common ground that the grandparents were able to offer good care for the child and that had they been considered during the care proceedings, the child would almost certainly have been placed with them.
So why was it that they WEREN’T considered during care proceedings? That would have avoided the child being placed for adoption and been with prospective adopters for nine months?
It is the father’s case before this court that he declined to tell his family about L’s existence because he felt “scared” to tell them as “he had embarrassed and shamed [his] family and let them down again”. As a result, the extended paternal family had no knowledge of L’s existence during the currency of the care proceedings. The father was pressed by professionals, including the allocated social worker and his own solicitor, to explain why he did not want his family to be involved. During the course of these discussions, he alleged that he had suffered physical abuse at the hands of his own father, L’s paternal grandfather. His case before this court is that this allegation was completely untrue and was said with a view to “getting people off his back”.
A word immediately springs to mind about this father, and that word rhymes with ‘glass’ (if you are from the South of England). He really was an absolute glass in this case.
it is obvious to everyone in these proceedings, and it will be obvious to everyone reading this judgment, that these events have been brought about by the father’s conduct. He is a young man, and he has not had the opportunity to explain his conduct in oral evidence before me. On any view, however, it must be acknowledged that as a result of his actions, a number of people have suffered very greatly. Mr and Mrs A, and their older child, have had to endure the terrible ordeal of losing the little girl to whom they had made the extraordinary commitment that all prospective adopters make. Furthermore, his daughter, L, has to cope with the distress and upheaval of moving from the home where she is settled and thriving to live with people she does not know. All this has come about because of the father’s misleading and deceptive behaviour. I hope he will now do whatever he can to ensure that L’s life with his family is as secure as possible.
It is quite hard for me, as someone who does Local Authority work all the time, to see how the LA could have gone ahead with their own assessment of the grandparents given that the father didn’t want them to be approached and made a child protection allegation against them.
The system that we have in place involves the parents putting forward family members – these days the issue is raised at every single hearing and included in the order and parents are warned that if they delay in putting forward a family member it may be difficult to get them assessed later on. Or sometimes, the family member comes forward themselves.
It is effectively an “Opt-in” situation – a family member is approached about being a possible carer for the child if and only if their hat is thrown into the ring.
But in a situation as here, where the family member doesn’t know about the proceedings and the parent doesn’t want them to be told, what can you do? Remember that the reasons for care proceedings can be very sensitive and parents in care proceedings don’t always have a close relationship with their family. As this father said, there can be a sense of shame in your wider family finding out that you have been accused of something or that you are said to be a bad parent.
From a legal perspective, the fact that a parent is in care proceedings is Sensitive Personal Data for the Data Protection Act, and without parental consent, the circumstances in which you could share that information with a family member is really limited.
And then, looking at the Family Procedure Rules about the sharing of information about proceedings (which, in the absence of a parents consent would also include that such proceedings even exist) seem to me to be a bar to telling a grandparent that there are care proceedings in order to explore whether they would put themselves forward – unless there is leave of the Court.
Finally, there are the article 8 considerations. The father here (even if we think he has some glass-like qualities) has a right to private and family life, and that can only be interfered with if it is proportionate and necessary.
So, all in all, I think that if there’s a scenario in which family members are known about but the parent objects to them being involved, that’s an issue that has to come before the Court and a decision made. (I can think of a LOT of situations where a father or mother would be perfectly legitimate in not wanting members of their family to be involved)
I’m not sure that even that is a total solution.
Suppose a Court (or a Practice Direction) says that in any case where adoption might be the alterantive that rather than an “opt in” (throw your hat in the ring) system that instead the LA will get out there and chase down and assess any family member who might be suitable.
Okay, you might catch grandmother and grandfather in your net that way, but only if the parent is willing to give you their details so that you can find them. How big is the net? Do you stop at Uncles? Great-Uncles? Cousins? Don’t forget friends – the Act is all about connected persons -or families and friends. You might be able to get a family tree out of a parent (though good luck in doing it with parents who are in the grip of heroin use and who don’t engage with the process at all), but are you going to get a full and exhaustive list of all of their friends too? What if they make new friends between the care proceedings and the adoption application?
If you cast the net wide enough to catch everyone, then you are going to have an unholy amount of investigation and checking to do to give the Court information about everyone in the net to be sure that there’s not someone there who could be a carer for this child. You aren’t going to do that within 26 weeks. Hell, even finding some of these people can take longer than that.
And is a Local Authority (or a Court) really going to push for an assessment of a grandfather in a case where his own son (as here) says “When I was a child, this awful thing happened to me”? On a twenty-six week timetable? I think not.
So I see what Baker J is getting at when he says this :-
although I have no specific criticism of this local authority’s work, (which I have not had an opportunity to examine in detail), this case illustrates the crucial importance of identifying at an early stage in public law proceedings any potential family members with whom a child can be placed. Local authorities must strive to identify the best possible methods of identifying such placements, and must not easily be distracted by comments made by natural parents which may conceal the truth.
I am not at all sure that this sentiment survives any contact with the real world, when you think what is involved.
The Judge is as nice as he can be to the prospective adopters, but I’m sure these words are as small a consolation as the consoling words given to parents after care proceedings are
- My final observations are addressed to Mr and Mrs A. I can hardly begin to appreciate the anguish that you, and your older child, must now be feeling at losing the little girl whom you accepted into your care and looked after in an exemplary fashion. Although the birth family undoubtedly had a strong argument for opposing adoption, I do not know for certain what order I would have made at the conclusion of a contested hearing. You have made the courageous decision not to proceed with your application and to allow L to return to her birth family as soon as possible. I had not been told in detail the reasons for your decision but, from what I have read, I am confident that you would not have taken this step unless you believed it to be in L’s best interests. In those circumstances, I have nothing but admiration for your actions. I know that there will be some contact between L and you and your other child, although the details are yet to be agreed. I am sure that, as she grows older, L will come to understand and appreciate the wonderful things that you have done for her, both in looking after her for the past eight months, and in making this great sacrifice that has enabled her to be returned to her birth family.
There is a legal argument about the fact that father’s case at this hearing was really both an application for leave to oppose an adoption order AND a simultaneous application by the grandparents for a Special Guardianship Order, and thus whether the grandparents application (which required leave) should be heard under that test. The Court weren’t persuaded by that.
Counsel for the prospective adopters made what I think are some telling and important points about public policy – they didn’t succeed, but as more cases about adoption involve long-drawn out contested court hearings and a degree of unpredictability about the outcome, that is going to inexorably lead to less and less people being willing to put themselves through that. I’ve represented adopters in the past and they all utterly dreaded the Court hearings and didn’t sleep and worried about the outcome – and that was in the days when I’d be able to advise them that the prospects of the adoption order not being made were vanishingly tiny.
As Ms Hyde of counsel says – the only real way for adopters to protect themselves and the child that they are considering as a family member in Court proceedings, is to delay the application so that it has been two or three years since the child came to live with them, so that no Court would contemplate moving the child. That’s the exact opposite of what the Government are trying to achieve with adoption, and I’m sure that also there are many good reasons why that lack of finality and the order itself is not good for the family dynamics (otherwise why ever have the adoption order? Just stay on a Placement Order forever)
Miss Hyde submits that the court should give particular weight to policy considerations. She contends that, if the court now allows an application which may thwart a successful adoption application, there will be grave and wide-ranging policy consequences. First, Miss Hyde submits that it will lead to a reduction in the pool of prospective adopters who will be discouraged from coming forward if there is perceived to be an increased risk of a late challenge to the adoption after the child has been placed. Secondly, she submits that the advice to future prospective adopters would inevitably be to refrain from making the adoption application until the child has been placed with them for a number of years so as to reduce the risk that the application will be opposed. This would be contrary to public policy because it would extend the period of uncertainty for the child. Thirdly, she contends that it will be extremely difficult for any court to control the timetable for assessment of family members in care proceedings, and thus the policy of identifying such placements as quickly as possible, which is an important feature of the Public Law Outline, (now in Practice Direction 12A of the Family Procedure Rules), will be undermined.
I think Miss Hyde is right on every single aspect. Does it mean that the Court were wrong in this particular case? No, I don’t think so. But these legal decisions can’t be looked at in isolation. They are an interesting discussion point for us lawyers, but if you are a prospective adopter who has taken a child into their home and into their heart, a case like this is a shockwave.
The Judge said this
- The crucial point, however, is that the purpose of all these policies is to serve the overall welfare of children. Where the law requires the court to give paramount consideration to the welfare of the individual child, and her welfare clearly points to one particular outcome, it would be manifestly wrong to allow her welfare to be overridden by any policy considerations.
- Furthermore, anyone reading this judgment will realise that the circumstances of this case (the father’s deceptive and misleading conduct, and the subsequent discovery that the birth family is, on the written evidence, manifestly able to care for the child) are very unusual. I hope, therefore, that prospective adopters will not be discouraged from coming forward as a result of this case. Adoption has a crucial role to play in our society and it is very important that people should not be discouraged from putting themselves forward as adopters. Those who do must, however, be advised that, where placement orders have been made, the law allows parents to be granted leave to oppose an adoption application where there has been a change of circumstances and the court concludes that the child’s welfare, which is the paramount consideration, requires that leave be granted. Applications for leave will only be made in a minority of cases and in most cases are unlikely to succeed, but Parliament has allowed the right to apply for leave to oppose adoption applications in such circumstances and all prospective adopters should be advised that this is the law.
When I wrote about Holman J’s case, I wrote that an easy inference about the case was that it was an extraordinary set of circumstances that would never arise again and it could be discounted, it was a stable door that could be shut although one horse had got through and bolted
but that a closer inspection of the case showed that at heart, it was about a family member who wasn’t assessed within care proceedings and could demonstrate that this wasn’t their fault. That is a set of circumstances that could potentially apply to any case. This case proves the point.
How can I know, how can adopters know in any case, that every family member who might concievably come forward in a years time, two years time, was considered and dealt with in the care proceedings? Maybe they weren’t in a position to care THEN, but they are now…
Is there such a thing any longer as an adoption application that is water-tight and can be considered as a sure thing?
This isn’t the last of these. Not by a long shot.
I look forward to seeing the Myth-busting document on these developments.