RSS Feed

Opposed adoption – outcome is child being placed with grandparents

 

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

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/52.html

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

    1. 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

  1. 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.
  2. 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.

 

 

Advertisements

About suesspiciousminds

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

28 responses

  1. Jerry Lonsdale

    I commented yesterday, Aunty Beryl who was once a lonely old dear now has an Uncle and Grandfather to add to her ever growing family, it will not be long until Brother Michael and Sister Janice are added to Beryl’s family all we would need then are Mum and Dad…..oh wait!

    • Ashamed to be British

      You did … it’s a stark reminder of how this system is failing, what happened to the days where the whole family just raised the children between them?

  2. The Children Act 1989 clearly states as follows:-
    (
    6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with”

    (a) a person falling within subsection (4); or

    (b) a relative, friend or other person connected with him,

    unless that would not be reasonably practicable or consistent with his welfare.

    Clearly then it was the responsibility of the local authority to place the child with relatives (in this case grandparents) without regard to the wishes of the parents;There have already been several cases of children removed from parents and placed with grandparents despite vigorous opposition from parents.I am not saying that is right or wrong (it dépends on the circumstances in each case) .
    What I do say is that it is the local authority’s responsibility in all adoption cases to find relatives to care for such children where possible and not the parent’s responsibility to inform them.
    As for the adoptive parents? They deserve every moment of pain and anguish that they get for daring to try to adopt a child whose parents are desparate to keep them They must surely ask for background before deciding to adopt someone else’s children?.Any adopters who legally steal children from loving but imperfect parents are criminals who deserve to be punished.

    • Ashamed to be British

      They’re as much victims to the system as anyone else, they’re lied to, manipulated and certainly not supported once adoption takes place.

      How wonderful that they selflessly take in this poor abandoned, abused, neglected child and love him as their own, yes that’s what they’re told, recently adopters asked why the grandparents could not take the child, only to be told they are dead! They’re very much alive.
      I always say it Ian there are no winners, only losers all round when the child discovers the truth, by which time the sw’s are long gone

    • removeyourblinkers

      I think if you read this story properly you will find that the birth parents did NOT want this child – there were NO desperate parents fighting to keep this child. Instead there was a young girl who was offered the highest level of support and could still not bring herself to parent her own child. Please remove your blinkers.
      Adoptive parents are told the hard facts. They will have been told the birth parents were young, did not have the support of their family etc. Which, as far as anyone knew in this case, was the truth.
      The adoptive parents, when noone else was there, nurtured, played, responded and cherished this child. Something which the birth parents were not able to do.
      So NO! they DO NOT deserve pain and anguish for looking after a child for parents who couldn’t or wouldn’t do the job.

      • I agree “removeyrblinkers” but I know from long experience that nothing will alter the views of this crazy bunch of conspiracy theorists of their warped and totally flawed notions about children being “stolen” for forced adoption. They’re all men as far as I know and I honestly have to wonder at their motives.

      • Ashamed to be British

        Actually we are not all men.

        This is not a conspiracy Kate, you really need to research this, remover your blinkers, open your mind and see what’s happening, you know it could be you at any given time right?

    • Totally right, Ian – any judgment which makes adoption less attractive to would-be adopters (or child-stealers, as they ought more properly to be termed is to be welcomed. Closed, forced adoption is morally reprehensible and an abhorrent practice which must be stopped as soon as possible.

      • Ah another member of the crazy pack of conspiracy theorists. Is subjecting a child to serious physical abuse, sexual abuse or serious neglect morally reprehensible? IF you agree that this can be the case what would be your response be to such a situation?

    • That would be a breach of the law so maybe you have laws in collision?

    • The father refused to tell his parents of the child’s existence because he was embarrassed. How do you propose that the LA “find relatives” who may (or may not) be suitable to care for a child who has been removed from the parents by an Order made by a Judge as it was proven that the child was suffering significant harm?

      I am appalled at your comments about adoptive parents. It isn’t possible for adopters (or anyone else for that matter) to “legally steal” children from “loving but imperfect parents.” Children can only be removed from parents by a Court Order.

      I wonder what your definition of “imperfect” is – people who subject their children to repeated physical abuse of a serious nature, sexual abuse, serious neglect, depriving them of warmth, food, a bed – leaving them in a filthy locked room for hours on end. ??

      Andrew (I think this is your blog) I am surprised and disheartened that you allow Josephs to make such inflammatory comments on your blog.

  3. “As for the adoptive parents? They deserve every moment of pain and anguish that they get for daring to try to adopt a child whose parents are desparate to keep them They must surely ask for background before deciding to adopt someone else’s children?.Any adopters who legally steal children from loving but imperfect parents are criminals who deserve to be punished.”
    A little harsh I think and thePGP were not on the scene immediately and I am sure the adopters have given a loving home. They must be heartbroken and I would like to think the PGP could let them remain part of the child’s life like aunt and uncle in view of their involvement. At least this shows that the courts are not so eager to exclude families even at the last minute- not that it helped us with the SW lies and mischief making condoned by the court
    Seems however Mumsnet brigade upset again….

  4. Nobody should adopt children unless they are sure no relatives have been fighting in or out of court to keep them.The birth family contested the adoption but the adopters went ahead in their attempt to legally steal the child anyway;Those adopters are no better than the kidnappers of Madeleine McCann in Portugal and should be treated in the same way if the McCann lot are eventually caught .

    • Wow, that is breath-takingly offensive. I have no problem with you vigorously opposing adoption and wanting the law to abolish it. Although I think that you are wrong, I am even prepared to concede that it may turn out in years to come that you were right and I was wrong. But that sort of comparison does your argument absolutely no favours.

      • Breath-takingly offensive indeed. Why do you allow such offensive comments on your blog? I know Ian Josephs and his co-conspiracy theorists of old, and know that nothing will deter them from their warped views, but I think Josephs has gone too far this time. Do you have any rules about offensive, insulting comments?

      • There are the comment rules, which you can see at the top of the page. I did decide fairly early on in this blog that I was going to let people express their views, even when I totally disagree with what they say.

        There are times when I have had to step in, but I don’t like to do it if I can avoid it.

        Ian’s comment here came pretty close to one that I was going to pull. But then, I think that it says a great deal, and I think that having it there in black and white allows people to form their own impressions about the argument that Ian is running. [Ian is Forced Adoption, in case that isn’t known to everyone]

        It is manifestly not a view that I share, and I hope that my response to it made that clear.

  5. Babies are taken at birth from mothers for “prédictions” of possible future emotional abuse.

    • NO the words of the Children Act 89 state that a Court can make an Order to remove a child from parents where he/she is “likely to suffer significant harm” – this could be physical, sexual abuse (which involves emotional harm) or serious neglect. You amongst many others fails to understand this abstract concept because you are a “concrete thinker” and lack the intelligence to conceptualise anything other than what is in front of your nose.

      • Ashamed to be British

        With respect Kate, babies are just taken on crystal ball predictions, it doesn’t matter what the law says, it’s not always followed.

        some of these babies are first time pregnancies, how can one possibly predict what sort of parent a person will be, when there’s nothing to compare it too?

      • I think that there is some misunderstanding about how likelihood of harm is arrived at. I will try to help unpick what the law says

        1. Likelihood of significant harm can be sufficient to satisfy the threshold criteria, and orders can be made on that basis (the Act itself)
        2. Likelihood of significant harm CAN be established even though the parents have not actually harmed a child (many many cases, but fundamentally Re B 2013, where the Supreme Court were wrestling with exactly that issue)
        3. Likelihood of significant harm has to be proved on the balance of probabilities (many cases, but fundamentally H&R and later Re B)
        4. To establish a likelihood of significant harm, two things are required:-

        (a)That FACTS are established, on the balance of probabilities (for example, it is factually established that the mother has a long-standing problem with heroin misuse)
        (b) That there’s then a link between that FACT and a likelihood of significant harm (for example, that when the mother is using heroin, she cannot manage her emotional state, is unresponsive and cannot manage her finances, thus leading to a likelihood of the child being neglected and their needs not being met)

        5. This is then the tricky bit, and was most of what Re H and R dealt with. Having established the FACTS, and they must be more likely than not to establish them, when looking at the likelihood of significant harm, the Court does not have to say that the RISK of X event happening is 51 per cent or more (they don’t have to say that X is more likely than not to happen), but can say that X is a risk that ‘cannot sensibly be ignored’. This is dancing on the head of a pin time here, and the House of Lords end up using loads of analogies about whether it is raining, or whether an animal seen at a distance is a dog or a lion…

        For example, if you have established as a FACT that the mother used heroin and that if she relapsed, significant harm would result, the threshold CAN be satisfied even if the Court decide that the RISK of relapse is 25% (you wouldn’t say that the RISK is more likely than not to occur, but you would say that there is a LIKELIHOOD of significant harm because the risk of relapse and thus harm is not one that can sensibly be ignored)

        If you find that confusing and baffling, you are not alone.

        Let’s say that the likelihood is based on the FACT that the mother has bought a pit-bull and the dog has no training and mother cannot control it and refuses to get rid of it.

        The Court can consider that there IS a likelihood that the child would suffer significant harm (being bitten by the pit-bull) and that even if the RISK of the pit-bull doing that is low (say 10%), the CONSEQUENCE for a child of being bitten by a pit-bull is so serious that it is a risk that cannot sensibly be ignored.

        If we swap pit-bull out for a hamster (just to make a point), the RISK of the hamster biting the child could be 60% – it is MORE LIKELY that the child would be bitten by the hamster than by the pit-bull, but one is a risk that cannot sensibly be ignored (the pit-bull,so threshold would be met), whereas the consequences of a hamster bite are trivial and it is a risk that can sensibly be managed or ignored, so threshold not met.

        6. Emotional harm can, if FACTS are established, then go on to establish a likelihood of significant harm even if the RISK itself is one that cannot sensibly be ignored. (That’s exactly what happened in the Supreme Court case of Re B 2013)

        What the Court must do, in considering any of these cases where harm is established on likelihood, is balance that against the known ACTUAL harm of removing a child from a parent and bringing them up outside of the family. (welfare checklist, and Re B)
        If you are challenging threshold put on that basis, there are two possible attacks – one, to dispute the FACTS that must be established to provide the Court with the risk that cannot sensibly be ignored, and two to dispute that the risk is one that cannot sensibly be ignored (i.e there is some risk, but not a significant one, and the consequences of the risk coming to pass are not that significant for the child)

  6. If such mothers fight in vain in court trying to keep their babies then any selfish adoptive parents not only deserve to lose the baby back to the mother but also deserve jailing with social workers and judges for crimes against humanity;These people are all complicit in kidnapping contrary to human rights and are no better than those who took the McCann child;worse in fact for their hypocritical assertions that they are acting in the interests of the child !

    • As someone who fosters, and has adopted two children from care, I have to take exception to your unfounded accusations and bigoted comments about the motives of adopters, and what they “deserve”.

      It is telling that over the years on this blog, you appear to always support the parents, especially the mother, even when all the evidence indicates they have badly abused their children. Your absolutely one-sided position seems to suggest children are little more than the possessions of their parents until they reach their 18th birthday.

      I always try and judge each situation on its merits, am very willing to accept that injustices occur (I’ve seen a few), and advocate for a fairer and more open family justice system. However, I’ve equally seen some very badly damaged children, who have become that way as a result of deliberate actions from their “parents”.

      Your constant blind support for one side in the face of all evidence to the contrary, does your case absolutely no good.

      I hope one day you will achieve a degree of perspective, but I fear you won’t.

      • Ashamed to be British

        I have to agree, I’m not against adoption, some parents really do want to take that path for their own reasons and we should never judge them for that, there are other parents who really should not be allowed near children (this is me, thinking back to Baby P again! Why oh why wasn’t he taken and adopted?! 😥 )

        I am against FORCED adoption, which is what Ian is speaking of, there is nothing you cannot fix, a family who wants to keep their children will mend anything that’s going wrong rather than lose them, unfortunately, when you have 26 weeks to do it, and it’s estimated you will need 1-2 years to mend your family, you’re already set up to fail, that is why Ian gets so angry, quite rightly

  7. Ashamed to be British

    @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)”

    There is Re W 2015 ….

    • Hi Sandy, a reasonable shout. I don’t count appeals that overturn Placement Orders
      and send them back for re-hearing, because we don’t know what the final decision was.

      An appeal with a re-hearing doesn’t count as a child being returned unless and until the re-hearing is reported. The re-hearing MIGHT end up that way, but the case isn’t finally decided yet. The Court of Appeal don’t say in such cases that the outcome was wrong, just that the route that the Judge took to reach that outcome was wrong, so the case is heard again from scratch. It might reach the same outcome by a different route, or the different route might lead to a different outcome. We won’t know, until the case is reported.

      • Ashamed to be British

        I hear you, and I kind of knew you’d say that, it was an adoption order not a placement order, and although you’re correct in saying that although it was overturned, that may not be the final outcome, it’s still a giant leap in the right direction, it was overturned, which has never happened before.
        Placements have been revoked, leaving that subject less shiny and new.

        These cases give hope and, I believe, gives judges something other to consider than the usual rubber stamp exercise.

      • Oh, the decision in Re W wasn’t anything new – I reported about a dozen cases where Placement Orders were overturned on appeal and sent for re-hearing in the space of about four months after Re B-S.

      • Ashamed to be British

        Suss, it was an appeal against an adoption order, NOT a placement order, revoking a placement order is nothing new, but Re W was the first of it’s kind

        http://www.familylawweek.co.uk/site.aspx?i=ed144569

%d bloggers like this: