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Re W – no presumption for a child to be brought up by a member of the natural family

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?

 

 

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About suesspiciousminds

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

63 responses

  1. “Powerful stuff. I hope that heed is taken of it.”

    Brought tears to my eyes as it links to your next point.

    “Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much. So HOORAY for this”

    The lack of humanity is indeed staggering!

  2. “It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all.”

    Uh its the other way round A has Article 8 family life rights with the natural family and it is a best interest consideration if those need to be severed! There may not be much of a legal presumption of being placed with family but there certainly should be a presumption of not being placed with family only if there are compelling reasons not to, IE there are reasons to tip placement away from,that, passing a threshold re one or more parents alone does not cut it, (guilt or unfit presumption by association?) even after placement the same should apply. I think of it this way, if a child was kidnapped at birth and sold, not to the unsuspecting carers, would the child NOT be returned if it was discovered two years later? Lets say it was an English child found in Spain? Would there be a public uproar.

    In my view and lots of others no placement with family is is a bloody common sense and humanly natural presumption only if there are compelling reasons not to that only the English legal system could play with so that Grandparents and others tend not to have a hope in hell for!

    And I find the whole impossible timescales for some parents to make some adjustment to be cruel beyond measure especially those parents who suffer from psychiatric trauma type injuries inflicted by others such as in parental DV CPTSD cases commonly and wrongly diagnosed as a personality disorder. And even in minor such cases where the stresses of proceedings exacerbate the associated hypersensitivity disposition and create a non recovery environment dynamic.

    I remember going to a psychiatrist to support some one diagnosed with schizophrenia to change his medication and was surprised when the psychiatrist said I am going to take my medical hat off for a while because my profession is not actually helping you. He then said I am a trained therapist and I have that hat on now, you are not schizophrenic, you are suffering from extreme repressed and unexpressed grief, deal with that and you will get better. Then he changed hats again and said right i have to do the job I am paid for and addressed the medication.

    Over the next few weeks my friend cried his heart out due to the life he had lost due to one event and his psychiatric incarceration and diagnosis and multiple Electro Shock Treatments. As some one with trauma therapy training I helped.

    Two months after he went for an assessment and a different psychiatrist said I don’t understand why you have been diagnosed as having schizophrenia you have an extreme form of a type of OCD likely part of a PTSD coping mechanism, i’m changing your diagnosis as it looks to have been always wrong!

    My friend was full of beans saying i’m cured of schizophrenia after 12 years, isn’t that meant to be impossible? And there is the rub the diagnosis of schizophrenia itself was impossible to escape from as there was no psychiatric cure available.

    He just got better and better quite naturally after that.

    I’ve have met many people in family law wrongly imprisoned in PD diagnosis’s.

    • DL and ML v Newham London Borough Council and Secretary of State for Education [2011] 2 FLR 1033 @ 1054 Charles J says:

      “[84] I pause to record that, in my view, the giving of this parental responsibility [upon placement for adoption] is an important factor in determining whether and when family life exists, or is established, between prospective adopters and the child placed with them.”

      His Lordship later says (ibid @ 1079):

      “[122] It was common ground that Art 8 was engaged. I agree and I also agree that:
      (1) the claimants and K enjoyed a family life together; and
      (2) it is not necessary to consider whether this arose on placement because of the grant of parental responsibility and the commitment of the prospective adopters, or only after the enjoyment for some time of their life together after placement.
      As to (ii) I pause to record that, in contrast to the position when an adoption order is made, the parental responsibility given on placement is shared with, and can be restricted by, the adoption agency. But, I accept and acknowledge that it should be remembered that:
      (a) the giving of such parental responsibility imposes duties and responsibilities on the prospective adopters and gives them a status and relationship with the child; and
      (b) a placement with a view to adoption, and thus the creation of a new family for the child, is based on a significant commitment by the prospective adopters.”

      This addresses the point raised by Munby P in re B-S (at §74(vii)) from the perspective of the prospective adopters. The mutual rights to family life of the child and the prospective adopters are relevant factors, and the older the child and the longer they has been placed with the prospective adopters, the greater the weight that the court should accord to these mutual rights to family life.

      • ” relevant factors, and the older the child and the longer they has been placed with the prospective adopters, the greater the weight that the court should accord to these mutual rights to family life.”

        But by the same token a child has a right in law, shamefully only when they reach a certain age, to know who their natural family is and to contact them and this includes whilst they reside with the adopters. As the child reaches competence it has the right to leave adopters even, the well known case of the two girls in the South West who ran to their mother as teenagers, they called it an escape and never went back and many other cases where children much younger do with foster carers and adopters. Crazily natural parents/grandparents etc of younger children have even been arrested or even threatened with arrest for prohibited contact with a child when they run home, that is mad.

        Of course LAs/CAFCASS never seem to advise children what their rights are at any time, parents who have a duty/right to are penalised for informing children, stopping contact etc, and some kids brave what must be very freighting to exercise those rights if by accident they discover them and use them or just happen to exercise them by being bloody minded (UNCRC, Gillick Rights etc). Of course there is a mass of contingencies but no proactivity of informing.

        What galls me most is where SW tell kids the parents did not want them only for the kids to find out later it was not true, is this some ruse to ensure placements stick? The psychological damage of such lies cannot ever be in the child’s interest. Kids should be able to trust SWs should they not?

      • ashamedtobebritish

        … Or rewrite their history, how they were saved by terrible abuse handed out by their parents, they’d never survived without being removed. I know so many parents who’s children would have led slightly dysfunctional lives but are completely mind raped by the lies they’ve been told, I know a handful that really should have been taken away, never to see the parents again, some have been, some are left to deal with the abuse they’ll suffer their whole lives.

        A personal memory for me was eating a family meal and after hearing my ‘grandmother’ say for the millionth time to my mum “you should be grateful, I chose you, I took you on not your offspring” I’d had it … This was the emotional abuse this so called caring adopter handed out that I KNEW of in my 18 years, had she spent her whole life being told she should be grateful? I suspect so.
        Horrible, evil, abusive, wicked woman, who was barren for a reason … Nature knows

      • Ah so a debt of gratitude that can NEVER BE REPAID, but interest continually extracted!

      • ashamedtobebritish

        I told her she was the lucky one then discontinued my relationship with this woman who invaded my family, after all, she made it clear she wasn’t blood related, but we were …

  3. The judgement, as all Mcfarlane’s judgements, is excellent and hinges on the fact that this child was placed with her prospective adopters at 7 months i.e. When she was at the beginning of her attachment process. At the time of this hearing she is 2 years or older i.e. At its completion. She has never met her grandparents. To lose the people who have cared for her will be a bereavement. There is a very simple article written by Dr Dora Black for general practitioners that I will send the link for tomorrow which explains the response and effects on very young children. I have very strong views regarding children remaining in their birth families but for this child to remain with her prospective adopters is crucial to enable her to grow up as a mentally healthy adult. Surely it is not beyond the wit of woman to make arrangements for this child to have contact with her birth family as appropriate throughout her childhood so that when she is older they will not be strangers. If the prospective adopters were willing to work with the LA to move her despite the pain that would be for them then surely they will work to enable their daughter to have contact with her birth family.

    • Julie Doughty

      I agree with Diane and do not understand why Jackson J says that the child will grow up without meeting her grandparents and siblings if she stays where she is.

      • I think the position of both parties was winner-take-all – i.e no contact to the other. That rather overlooks the fact that wherever the child is placed, the Court COULD impose a contact order. (There is authority that says that contact order ought not to be made against adopters against their will, but I think there’s sufficient in this case to make it exceptional). And also s51A is a new provision about post adoption contact, so that in itself might justify deviation from the previous case law guidance – given that Parliament expressly set up a mechanism for contact orders to be made even after adoption orders made.

    • I do hope that Jackson LJ’s judgment was a bit of a wake-up call for both potential carers and there’s room for some compromise on contact. I suppose from the grandparents point of view, they’d say that they acted as soon as they knew about A’s existence and that if the Court had not taken all of this time to hear the matter, the impact of a move would not have been so great.

      I was rather surprised not to see the President’s Re C at any point – he endorses it in many Court of Appeal hearings – talking of a child placed with prospective adopters for 2 years who had not seen the family for all of that time “Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?”

      Really, that authority could have been sufficient to both grant the appeal and dismiss the grandparents application, without all of this additional confusion. (Whether you agree with it or not, the not going to disrupt after 2 years principle is already in our legal framework)

      • I wondered about Re C as well but perhaps this can be distinguished because the siblings have settled with the GPs – ?

      • Sorry, siblings with branches of paternal family, not both with GPs.

    • Attachment theory has long been seen as relevant to contemporary social work thinking about children looked after and assessment and planning takes into account a child’s need for stable and lasting relationships with caring adults. I am therefore shocked that social workers and a judge in this case do not seem to understand the emotional harm that would be caused by breaking an apparently secure attachment. Instead the focus should be on promoting the optimal development of the child – by understanding the importance of early childhood experiences in developing a sense of self-worth and the ability to form trusting relationships in adult life. I am convinced that strong and healthy attachments in early life can stand an individual in good stead for the rest of their life and this should be main objective for this little girl.

      • But children are capable of multiple attachments (Rutter)

        people think nothing of putting young kids in nursery with utter strangers

      • jollife, my point is that a secure attachment in infancy is crucial to the child’s development. If all goes well a process of imprinting takes place and the child learns that the people who provide food, warmth, affection, attention etc. are people who are reliable and trustworthy – hence bonds of attachment develop. It is not unusual for children at the age of 2 to feel anxious and fearful if suddenly separated from a parent. I accept that many parents today make use of nursery and expect the child to learn to cope with brief separations from the parent. However, it would be a very different matter to remove such a young child permanently from the people she has become attached to.

      • Diane Jackson

        Absolutely. If a child forms a good secure attachment with their first protective person i.e. here most likely the prospective adoptive mother this will be a good foundation for being able to trust people and form good relationships throughout their life. If the child is then separated from that person and all s/he knows as familiar the child will be bereaved; the child will not understand why the person they have trusted and has protected them has disappeared. For a child at this age such a loss could cause problems throughout their life. I found it hard to conceive also that a social worker put up option 1, did the person lack empathy – just thinking how anyone, and especially a 2 year old child would experience it made me not only want to cry but also to scream and shout “no no no”. It is like something out of a Grimm’s Fairy Tale, my mind boggles at it being a suggestion for moving a child, actually i’ll rephrase that – it’s very Kafka-like!

      • my point is why break or deny or loose any relationship?

        A child thrives on multiple relationships,

        I know foster parents who only had kids for one month yet formed life long attachments

        Family law needs a much kinder and more human approach rather than this all or nothing BS

        How difficult would it be to socialise the child with the Grand Parents, progressively and then have it transform in to the equivalent of shared parenting as the child is able to adjust and maybe more and why have to cut one or other out, its the cut in the relationships that does the damage, that has already happened with the parents, damage done.

        But a process of reintegrating blood family with out loosing the foster parent would at an emotional level restorative, gain without loosing, that would actually be good for the child.

        If you go back to the village, just take a look at some African communities, kids get brought up by whole families and communities, the multiplicity of relationships engenders good emotional health, how has family law in the west become so divorced from this approach?

        Instead of seeing the benefits of multiple attachments which aid socialisation we have become somehow insecurity focused.

        If the Grandparents are not monsters, what is the damn problem with A having a real caring relationship with them? Kids are not legal issues to be resolved devoid of common sense.

      • I think that’s very much what Jackson LJ was driving at – an arrangement where this child grows up knowing both sets of people who wanted to care for her. I agree that the zero-sum approach in children cases can be very dispiriting to see play out.

      • ashamedtobebritish

        Well said Hilary, speaking as someone who was taken from a disruptive and non secure attachment, I suffered the same, an attachment is an attachment
        It’s a shame some ppl (in my case my parents) are too selfish to understand how a child can be so easily destroyed by having to be removed from them, dysfunction and chaos would have suited me fine

      • There you go, “a not so good parent is better than no parent”

      • ashamedtobebritish

        For me yes, I’m 49 and cannot firm any kind of relationship, friends work colleagues partners no school friends etc etc …

      • Hey you seem a bright, thoughtful person pleasant chap with a bit of gumption, happy to be your friend, my mother died when I was very young and it took me 35years to find out how to get beyond that.

      • ashamedtobebritish

        Sorry to hear, must be hard.

        I’m female lol … I think I had to get tough in certain areas of my life and being a mkf allows that, as for me personally, bitter, angry

      • Thanks but I am honestly entirely at peace with that now (took a lot of work but worth it)

        Female, LOL just shows that PC binary speak is not gender specific

        You do not come across as bitter and angry, just very focused, but I did MKF stuff to start with because of anger at my treatment and to learn how things actually worked in family law, or rather dysfunctionally worked from all sides

      • ashamedtobebritish

        Snap.
        I wasn’t prepared to let someone else feel like I do

      • Attachment theory is over-used and overrated and all too often misused. It may be very difficult for a 2 year old to be removed from people she has known, but in the long-term she would choose to be with real family and the damage longer term by being with non-blood relatives will be far greater. People always, without fail want and need to find their roots. She will recover from the separation from the prospective adopters and there can be a tapered off contact until she is used to her relatives. It is not all about the here and now, it is her future life and the years ahead that matter too.

    • Hi, have u sent that link on Dr Dora Black u mentioned as I could not see it ?

  4. ashamedtobebritish

    Look, the la rarely have a problem with moving children from placement to placement over several years, so to be placed again at two isn’t quite the biggy they make it out to be.

    Family are less likely to have a breakdown in placement as they tend to put up with what others wouldn’t, it’s an assured tenancy rather than a 6 month lease.

    The court must consider what is right for the child for the rest of their natural life when placing a child, not until aged 18 when the child will go looking for their natural family.

    Save the child the grief … Let her go home to her roots

  5. The parents did not raise the possibility of A being cared for by the paternal grandparents at an earlier stage and so this option was not explored or considered until a much later stage. I note that para 4 explains what happened at the beginning: ‘At that time the social services had attempted to identify relevant family members but, due to the non-cooperation of the parents and the maternal family, the social workers did not have any knowledge of the paternal family and were, consequently, unable to trace them.’ These factors show that social workers were not at fault and that arguments should now hinge more on the child’s welfare, in the sense of her developmental needs – paras 68-84 also confirm that less weight should be given to the rights of parents or grandparents. It is obvious to me that, without an in-depth assessment of the emotional and developmental needs of A, it is difficult for a court to reach a decision.

    Incidentally, the younger children were not placed together with the grandparents. Para 11 says that J is with the paternal grandparents and K is with the paternal aunt.

    • Thank you – I’m afraid I spent more time wrestling with the law than the facts. That does perplex me a little, unless the grandparents had decided not to take K in order to have room for A. If they were able to care for two children, why not have J and K? Why split two full siblings if there was a placement available suitable for two children?

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  7. In amongst all the many astonishing bits, here is the ACTUAL plan that Bodey J had before him as to how to move this child from adopters to grandparents. (Bear in mind that he MADE the SGO and thus the intention was that one of these 3 plans happened)

    Option 2 was the one that the Court originally went with.

    The social worker described three basic options:

    Option 1 – a four day period during which Mr X and the social worker would introduce A to the grandparents (not as “grandparents” to avoid confusion but by using first names only) for example at a chance encounter in a local park. A similar encounter would then take place the following day close to the grandparents’ home and would include an “impromptu” offer to come for tea at their home. On the third day Mr X and the social worker would take A back to the grandparents’ home and spend a few hours there with them and on the fourth day A would say her goodbyes to Mr and Mrs X and the social worker would take A to the grandparents’ home for good.

    Option 2 – the social worker would simply collect A on a given day and take her to the grandparents’ home. The social worker advised “this option in essence requires A to be moved without preparation and the emotional impact would be significant and potentially long-lasting as she would be confused and distressed and it would be for the paternal grandparents to answer her questions, with the local authority’s support”.

    Option 3 – A is moved to foster care, as a bridging placement, for three to six months to settle, receive therapeutic support and advice prior to being introduced to the parental grandparents.

    As was pointed out to me, Option 1 would seem pretty harsh if you read it in a Grimm’s Fairy Tale, never mind as an optiion designed in proceedings for which the child’s welfare is apparently paramount.

    [Thanks to @dilettantevoice ]

    • ashamedtobebritish

      You surprise me … For me, option 1 is the only option.

      2 isn’t gentle enough, slow is quickest

      3 is just … No, no, no. Too many placements

      • The option that wasn’t on the table was the way that children are usually moved from foster care to adoption – with the current carers and prospective carers meeting and talking, and the child becoming familiar with the new carers over about two weeks before a full-blown move. I think that must have been about the adults, because it MUST be better for the child to have some familiarity with both sets of carers and for the new carers to learn about routines, likes, dislikes etc from the people who know them best.

      • ashamedtobebritish

        I agree, 4 days is ridiculous … 4 months is nearer the mark and if both the grandparents and prospective adopters were child focused, they’d have argued that very point

  8. maureen spalek

    morning thank you for this email very very interesting i would like to highlight that in my case it was made clear by a Lord Justice RYDER in 2008 that my children were removed Unlawfully from the care of my mother (grandmother in 2003) therefore when hearing this and representing myselft as a LIP…. i stated to the judge this would then mean that an adoption order would clearly be either INVALID or VOID he agreed ?…. this now will give me clear grounds to sue LCC SS when my children are 16 i am told .

    • Been there done that, but when it came to the Final hurdle, I and my family made the decision not to take it any further, we neither needed nor wanted tainted money, rather live with, what goes around comes around

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  10. I hope Jackson LJ has opened the possibility for a less binary approach for the benefit of the children. The option that wasn’t on the table seems to me to be the only one that actually complies with the Children act proscription about the children’s needs being paramount. I agree that the most tragic aspect of family law is how the money, or the lack of it, talks, spouts endlessly… while the children are forgotten.

    • Whoops prescription, not proscription. What a world of difference one letter can make to a word!

      • …Freudian slop. If only the children’s interests were Paramount, or even a Working Picture.

      • “Freudian slop. If only the children’s interests were Paramount, or even a Working Picture.”

        Can you tell me how to get,
        How to get to Sesame Street

  11. I am not a lawyer and do not share Andrew’s view that the Appeal Court gave insufficient weight to the human rights of the natural family. We should not forget that with Rights go Responsibilities. Most people expect parents to take personal responsibility when they have children and the track record of these parents is not good in this respect.

    The fact that this judgment has introduced more complexity into adoption law seems a positive development – because it correctly recognises serious weaknesses in two areas considered at the previous hearing. In the first – that of conflicting legal argument about human rights – it makes clear that the human rights of the child were not given sufficient weight. In the second – that of the shortcomings in the judge’s welfare evaluation (which was associated with the limitations of social work evidence about the welfare needs of the child) – it points to the need for a more objective assessment. I suggest this should be from an expert in child psychology with knowledge of developmental attachment theory plus new thinking about the development of self and the sense of belonging. While we may yearn for simple answers, we should not expect a single judgment such as this to provide a simplistic analysis of what is a very complex situation.

    This judgment brought home to me the crucial importance of social work skills in assessment work and the problems of binary thinking. I do not recognise the unrealistic fantasy of adoption as the ‘forever family’ which negates the fact that adopted children already have a family that they will feel connected to. But I do recognise when ‘good enough’ parenting is acceptable and am against unnecessary state intervention into family life which disturbs the status quo.

    • Speaking as an adopted child, who was brought up by adoptive parents who did their best to love and cherish me… which I appreciated, I think that attachment theory has not examined the long term effects of taking a child from their natural family: the psychic tear that is created is not easily plastered over with good intentions.
      I’m sorry to say that despite the amount of ‘professional’ scrutiny that has gone into investigating the needs of the child, there are either some large blind spots or some areas that have been deliberately overlooked. I note that the research budgets of adcs have never been used to research the long term outcomes of adoption, but that did not prevent Andrew Webb, when he was their spokesman, saying that “they are not aware of any problems” with adoption, which sounds rather disingenuous considering they have never looked.

    • I’d certainly distinguish between the article 8 rights of the parents (which at this point I think are slender to wafer-thin) and those of the full siblings, and I don’t think one can really criticise the grandparents who came forward as soon as they knew of A. It perhaps raises some issues as to whether the current model – which relies on parents putting forward family members is robust enough when you have parents who are barely functioning or engaging. Should someone have pro-actively approached the grandparents about A ? (difficult at present, because parents have rights about confidentiality, but perhaps Courts could start making directions to that end)

      I have no problem whatsoever with a Court saying that the original judgment was flawed and didn’t give sufficent weight to the child’s interests and welfare – I just think you can do it by relying on existing law rather than throwing yet more uncertainty into adoption law. The Court could have said “The original judgment failed to properly assess whether the child’s overriding interests would be better served by remaining in a settled placement and that needs to be looked at again”

      You make some really good points though, and thank you very much for contributing. Binary thinking in particular is a very important discussion.

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  13. I am particularly interested in issues about social work practice and the implications for adoption work in the future.

    It strikes me that this case has exposed serious concerns about the state of social work today and the unbridgeable differences of opinion within the profession regarding the pros and cons of adoption. On one side are those who are critical of state intervention into family life and simply make presumptions in favour of the child’s placement within the family. On the other side are experienced social workers who are pragmatic and know that adoption can be beneficial when the family is unable to meet the child’s needs. In recent years the arguments have been won by the former, with the support of human rights lawyers, and the profession now promotes an ethic that an important part of child and family work is to put right a wrong suffered by disadvantaged parents.

    Both the child’s Guardian and the Independent Social Worker assumed their role was to obtain justice for the child’s natural family and were very selective in the way they presented evidence to support this objective. They seemed entirely uncritical of the views of the local authority which quickly concluded that the child had to move. The Appeal Court judgment stated clearly that no ‘right’ exists for a child to be brought up by his or her natural family. This was a huge slap in the face for the profession and for CAFCASS. It is shocking to see that a Guardian did not have the capacity for making an independent assessment of the child’s best interests and had become too closely identified with one particular ideology within the profession. Her limitations are indicative of a culture within CAFCASS which has dragged social work into a different place and lost the proper focus on the welfare of the child.

    One of the implications of this ‘presumption for a child to be brought up by a member of the natural family’ is that adoption work would suffer – no-one wants to go through the emotional upheaval that these potential adopters must be suffering. It seems unfair that potential adopters have to undergo assessment over a year or more, with rigorous examination of their upbringing, personal relationships, beliefs, health, financial circumstances and so on but, when natural parents belatedly want a relative to care for their child, social workers seem to support them without too many questions being asked. It will be interesting to see whether this case has an effect on the recruitment of adopters in the future.

    • ashamedtobebritish

      Who are we batting for here? The adults (adopters) or the child’s best interests for the rest of their natural lives.
      The adopters will have to get over it, they know the risks

    • ” One of the implications of this ‘presumption for a child to be brought up by a member of the natural family’ is that adoption work would suffer – It seems unfair that potential adopters have to undergo assessment over a year or more, with rigorous examination of their upbringing, personal relationships, beliefs, health, financial circumstances and so on but, when natural parents belatedly want a relative to care for their child, social workers seem to support them without too many questions being asked. It will be interesting to see whether this case has an effect on the recruitment of adopters in the future.”

      a so justice for adopters, but not the natural family and the child? and of course the adoption work is paramount

    • dissent is not acceptable it would seem.

      • Dissent is acceptable in the court setting if it can be supported by hard evidence and argued logically. However, the Guardian’s report was said to be wholly inadequate and, in a number of serious respects, downright wrong.

        It was wrong for the Guardian’s to pre-judge the case and not make any effort to understand the child’s wishes and feelings. The background can be summarised in the following way. The child’s parents are unmarried and at the time of her birth were unable to look after her. The father has never had parental responsibility for her. She was placed with foster parents when only one day old and neither parent played any real part in the care proceedings. At the age of 7 months she was placed with the prospective adopters. These core facts should have been carefully considered and given more weight.

      • ashamedtobebritish

        While I understand your concern here, I can’t agree with it.
        For the first time ever, I advocate the risk of future harm.
        It’s not about which adult has done what in the past, or now, it’s about setting this child up for life, that is best done within the family, the trauma she’d face and feel on finding out she is adopted will make her feel unwanted and unloved by her blood family, which is not the case at all.

      • Hilary I agree. I have very strong views that children should remain with their birth families if possible. I have in the past as a children’s guardian really dug my heels in the face of tremendous opposition, and ensured that happened. And I am aware that every adopted child wants to know her or his heritage/birth family. But every case needs to be looked at individually. Yes I hope we could have a more open practice regarding adoption. I have heard and agree with much (for example) the transparency project say, and having been a member of a group trying to forward the ‘prevention and rehabilitation of children in care’ in the 1980’s, I am glad that there are people fighting for children to remain with their families.

        But every case needs to be looked at individually. And from what I read of the transcript of the judgment in this one I agree with it, and think (and hope) that when it goes back to court for a hearing on the substantive issue that the court will agree. It is not a final decision but I hope this young child will remain with the adopters – and that there will be some contact with sibs, and grandparents – and other birth family. But I do not think that contact should be a ‘shared care’ situation!

      • ashamedtobebritish

        Why? How can it possibly not be in the child’s best interest to know and be raised by all who love her?
        She will survive a gradual transfer of care to her family, but it’s highly unlikely she will survive not being given the opportunity to bond with them, adoption hurts children throughout their lives even if they reunite with their families, lost childhoods cannot ever be given back

      • I don’t think it is as simple as this, hence this case. I agree that all children need to know their heritage but they also need to have a safe nurturing childhood and the first months especially are crucial. I understand that the parents of this small child were not known until she was much older than when removed, I agree that maternal relations need contact, especially as she grows older and wants to understand her heritage. The thing is that it ain’t simple but it is good suesspious minds raise it!!

        Dianw

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