You don’t often see a case about adoption support – it is hardly ever litigated, so when one comes up, I take an interest. Adoption support is exactly what it sounds like – what financial and other assistance do adoptive parents get to assist them in the care of the child that they’re adopting.
In this case, a failure by the LA to understand their statutory obligations to assess the level of adoption support and provide a package held up the adoption application for 18 months.
A v Adopt London North & Ors [2024] EWFC 373 (20 December 2024)
http://www.bailii.org/ew/cases/EWFC/HCJ/2024/373.html
Theis J summarises the issues accordingly
The court is concerned with adoption applications made in February 2023 by the maternal aunt, A, of three children, B 16 years, C 16 years and D 14 years. Their birth mother, E, died in a car accident in 2012. Their birth father, F, has had no involvement in their lives and I determined at an earlier hearing should not be served with notice of these proceedings.
These applications have taken over 18 months to conclude as a result of the local authority’s failure to understand its statutory obligations in respect of adoption support and to properly assess the family for that support. The delay caused by this misunderstanding has been detrimental to the children’s welfare as it has prevented final decisions being made for orders which there is no dispute their lifelong welfare needs require.
The matter was listed for a final hearing on 9 December 2024 when the court was able to make the adoption orders. The reasons for those orders being made are set out below.
I have dealt with these proceedings since the start. It is hoped this judgment will prevent other prospective adopters having to endure such prolonged uncertainty by delays in adoption support assessments being undertaken that accord with the statutory obligations of the local authority. A has had the benefit of a legal team who are recognised experts in this area of the law, but even with the level of expertise it has still taken over twelve months for an adoption support plan to be presented that complies with the legal obligations of the local authority. The court is extremely grateful to Mr Wilson and Ms Dally who acted pro bono in relation to advising A about related judicial review proceedings and the drafting of two pre-action protocol letters about the local authority adoption support decisions.
(The children’s mother had died in a car accident when they were young – the children went to live with an aunt and grandmother in another country and the aunt had to flee that country due to persecution – she had spent a year in captivity being tortured. The aunt is the adopter here, and one can see that firstly she would need help and support and secondly that the Court was likely to feel sympathetic towards her quite rightly)
The children had considerable needs, including one child who had extensive scarring on her body from her father throwing hot oil over her.
B has significant health needs and has been diagnosed with Kernicterus, a neurogenetic or neurometabolic disorder which is caused by a rare complication of jaundice causing brain damage. He has four limb motor disorder with oral and peripheral limb involuntary movements and associated difficulties with eye opening and being able to look upwards. Due to the stigma attached to disability in Country X, B had not attended school.
B’s twin sister, C, was subjected to sexual abuse in Country X and although she attended school she has struggled with panic attacks, suicidal ideation and unexplained seizures. She is currently being supported in her school, and through CAMHS.
D attended school in Country X but has permanent scarring on her body as a result of third-degree burns caused by her birth father when he threw hot oil at her mother. This has had both physical and psychological consequences for D.
Very much NOT the case you would pick as a Local Authority to try to defend not giving adoption support.
The Local Authority prepared an Annex A report in August 2023 which supported adoption orders being made. In relation to adoption support the report failed to include any assessment of the family’s need for adoption support services and contained the legally incorrect assertion that ‘the placement is not eligible for adoption support’ as it was a ‘non-agency adoption’.
Theis J summarises the legal position regarding adoption support
Turning to the question of adoption support services section 3 (1)-(2) ACA 2002 require the local authority to maintain adoption support services designed to meet the needs, in relation to adoption, of children who may be adopted and persons wishing to adopt a child. Such services are specifically designed to assist adoptive families. The Statutory Guidance of Adoption published in July 2013 makes clear at paragraph 9.1: ‘The provision of a range of adoption support services is a crucial element of the statutory framework introduced by the Act. This is based on the recognition that adoptive children and their families are likely to have a range of additional needs.’
Section 3(3) ACA 2002 requires that such support services must extend to those persons prescribed by regulations and may extend to other persons.
- Section 4 ACA 2002 provides that ‘a local authority must at the request of …(a) any of the persons mentioned in paragraphs (a) to (c) of section 3(1)…carry out an assessment of that person’s needs for adoption support services’. Those listed in section 3(1)(a) ACA 2002 include children who may be adopted and persons wishing to adopt. The local authority is obliged to undertake an assessment of need for adoption support services, if requested to do so by A.
The Adoption Support Services Regulations 2005 (‘ASSR 2005’) prescribe the services which must be available, those individuals to whom adoption support services must be provided, and the nature of any assessment of need for adoption support services. The combined effect of s3(3) ACA 2002 and Regulations 3 and 4 ASSR 2005 is that:
(1) The only support service which must be offered to A, subject to an assessment of need, is counselling, advice and information.
(2) The local authority is not obliged to offer other prescribed support services, such as financial support, therapeutic support, or services to prevent disruption, to A. This is because the imperative to provide such services is limited to an ‘agency adoptive child’ or the adoptive parent of such a child. The local authority may, however, offer such services and has a discretion to do so.
This is confirmed at paragraph 9.7 of the Statutory Guidance which provides:
‘Under section 3(3)(b) of the Act, local authorities have discretion to extend services to persons other than those to whom services must be extended. This means that, for example, services to prevent disruption could be provided to a non-agency adoptive child, and financial support could be provided if the local authority considered this appropriate.’
Regulations 13 to 18 ASSR 2005 govern the manner in which an adoption assessment must be carried out. Pursuant to Regulation 13(3) ASSR 2005, the local authority is not required to assess the person’s need for a service if he is not within the description of persons to whom such a service must be provided. However, it has a discretion to do so. This is confirmed at paragraph 9.43 of the Statutory Guidance:
‘The people who are entitled on request to an assessment of their need for adoption support services are set out in section 4(1) of the Act and ASR 13. As explained in paragraph 6, ASR 4 limits the local authority’s duty in this respect to an assessment of need for support services of the kind to which each category of person is entitled. Local authorities have discretion under section 4(2) of the Act to undertake an assessment for other persons or in other circumstances if they think it appropriate.’
Section 4(5) ACA 2002 requires the local authority, if it is to offer adoption support, to prepare an adoption support plan and keep the plan under review.
As Mr Wilson submitted at an earlier hearing when the local authority had failed to carry out an assessment:
(1) The local authority is in breach of its statutory duty to undertake an assessment of A’s need for adoption services.
(2) A is not ineligible for adoption support. She is eligible for the full range of adoption support services if the local authority chose to assess her for them. Insofar as the local authority does not assess her for financial or therapeutic support, this is a decision on its part not to exercise its discretion to do so.
(3) Such a decision is amenable to challenge on the usual public law grounds.
As a result of this analysis Mr Wilson submitted that the local authority’s contention that A is not eligible for such support services and that the support available to her through Early Help is higher than that under Adoption Support is both ‘legally misconceived and factually incorrect’ as it ‘misunderstands the local authority’s discretion to assess her for support services and ignores the benefit to the family of having any support offered to it enshrined within a formal, statutory document in the guise of an adoption support plan’.
In determining whether the court should make an adoption order the court can only make such an order if it meets the lifelong welfare needs of the child in accordance with section 1 ACA 2002. The child’s welfare is the court’s paramount consideration in reaching any decision, having had regard to the welfare checklist under s1(4) ACA 2002.
The LA did, albeit at quite a late stage of proceedings, agree a package of adoption support for the family and to backdate some payments
I am satisfied that each child’s welfare requires the consent of their birth father to be dispensed with. He has had no active involvement with the children throughout their lives and any involvement that he has had has caused them significant physical and emotional harm.
Although the issues regarding an Adoption Support Plan have finally been resolved it is of very great concern that it has taken twelve months, and that part of that delay was caused by a fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support. It was only through the tenacity and expertise of A’s legal team and two letters before action that the situation now has been reached where agreement was possible. That additional significant delay and lack of certainty has been contrary to the welfare needs of these three vulnerable children.
Having considered the evidence in this case and the updated adoption support plans, with the additions made at this hearing, I am satisfied that the lifelong welfare needs of each of these children can only be met by the court making the adoption orders.
suesspiciousminds 