RSS Feed

Search Results for: Relinquished

Relinquished baby, chapter and some verses

I just ended up doing this long summary of the various issues that arise and where to find the answers in case law, so I thought it might be helpful for more general use.  It is too bony to serve as a skeleton, but it might help people as a starting point, because the answers are fairly scattered across a variety of cases.  [If you end up using it and want to give me a name-check, that would be very kind]

Our starting point is that for a genuine relinquished baby, where both parents consent, “nothing else will do” does not apply.

https://suesspiciousminds.com/2016/03/03/an-answer-on-relinquished-babies-and-re-b-s/

 

Baker J in Re JL (2016)

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/440.html

 

 

(2) The decision of the Supreme Court in Re B [2013] UKSC 33 concerned non-consensual adoptions. Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. But the parents’ wishes, although important, are not decisive. They must be evaluated along with all the other factors in the welfare checklist in s.1(4) of the 2002 Act. In all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S [2013] EWCA Civ 1146.

 

 

What does that thorough analysis of the realistic options for the child mean for extended family? How far does a Local Authority have to dig into family members?

 

Re C  v XYZ Local Authority 2007   Court of Appeal authority

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1206.html

 

  1. In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.

 

 The LA aren’t OBLIGED to assess and rule out family members, but they should explore them if they represent a genuine prospect of placing the child within the child’s timescales. If a parent is resistant to that, I’d suggest that their views can be respected  (it perhaps gets a bit more complicated if say maternal grandmother is a professional foster carer, then one might think that she is a genuine prospect)

 

And what about a father?

 

A father with PR, you can’t adopt their child without dispensing with their consent, so you ABSOLUTELY HAVE to serve them. No ifs, no buts.

 

What if the father doesn’t have PR – and doesn’t know about the child, and mum doesn’t want you to tell him?

 

X County Council v C 2007  (High Court, Munby J, as he then was)

http://www.bailii.org/ew/cases/EWHC/Fam/2007/1771.html

 

The court has an unfettered discretion, to be exercised having regard to all the circumstances and in a manner compliant with the requirements of the Convention. That said, and where there exists family life within the meaning of article 8 as between the mother and the father, one generally requires “strong countervailing factors” (Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [48]), “very compelling reasons indeed” (Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam), [2006] 2 FLR 589, at para [17]) or “cogent and compelling grounds” (Birmingham City Council v S, R and A [2006] EWHC 3065 (Fam), [2007] 1 FLR 1223, at para [73]) to justify the exclusion from the adoption process of an unmarried father without parental responsibility. At the end of the day, however, every case is different and has to be decided having regard to its own unique circumstances.

 

This all assumes, of course, that there is family life. Based on what the mother has told us of her relationship with L’s father, I am sceptical as to whether he can in fact pray in aid article 8 of the Convention. If what she has said is correct, there was almost certainly no family life. But given how little we know, it would not be safe to proceed on that basis. I shall assume, though without deciding, that the father’s rights under article 8 are indeed engaged.

 

Much more significantly, of course, this all assumes that the father’s identity is known, because otherwise there is a potentially insuperable obstacle to engaging him in the process. Can the mother be compelled to reveal his identity? This is the issue at the heart of the present case.

 

In Z County Council v R [2001] 1 FLR 365 at page 366, Holman J speaking of the father said:

 

“There is no power to compel her to reveal the identity and, in the circumstances, all proceedings must necessarily take place without notice or reference to the father or further information about him, than that which the mother has volunteered.”

Dame Elizabeth Butler-Sloss P observed of this in Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646 at para [31] that Holman J “assumed” that there was no power, having heard no argument to the contrary. She herself (see at para [52]) did not have to consider whether there is such power.

 

There may be some room for doubt as to whether, when he said “there is no power,” Holman J was referring to power as a matter of law or power as a matter of pragmatic reality. I doubt that, in strictness, there is as a matter of law no power in the court to order a mother to disclose the identity of her child’s father. After all, the powers of a judge exercising the inherent jurisdiction are theoretically limitless, though in practice there are well recognised limitations on the exercise of the jurisdiction. But whether it is proper, whether it is appropriate and prudent, to exercise such a power, assuming it to exist, whether it is appropriate and prudent to attempt to compel an unwilling mother to disclose the name of her child’s father, is a very different thing.

 

 

 

 

 

 

The fact is that the local authority and the guardian and the court have tried very hard but the mother has made her position perfectly clear. Patient explanations have been given to the mother, both out of court and in court, as to why it is so important from L’s point of view that we learn who her father is. The mother’s position remains as it has been throughout. There is very little prospect – in truth, virtually no prospect – that she is going to volunteer any further information about L’s father.

 

It may be, and the mother is steadfast in the assertion, that there is in fact nothing more to disclose. The local authority and the guardian (and not without grounds I have to say) suspect there is more she could tell us if she chose to.

 

Let me assume that this is so – I emphasise I am making no finding that it is. Where does it take us?

 

In the first place, although one can only speculate as to why the mother should be adopting such a stance (if indeed she is), I would not want to assume that she is acting otherwise than properly by her own lights. We take a different view, but for all I can know she may conscientiously believe that it is not in her daughter’s interests to know anything of her father – and who is to say that she might not be right.

 

But what am I to do? The mother has told me herself in court – not in the witness box on oath but from the well of the court – that there is nothing more she can tell us. There is no reason to believe that she would say anything different were she to be required to go into the witness box and either take the oath or affirm. It would naïve to imagine that someone who on this hypothesis is prepared to lie when addressing a judge direct is suddenly going to volunteer the truth merely because put on her oath.

 

And is it to be suggested, if she maintains her denial, that she should then be cross-examined (and if so with what degree of vigour?) so that the truth can be extracted from her? I confess that I find the idea very disturbing. There is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined in order to compel her to reveal the name of her child’s father. And there is something deeply unattractive and unsettling in the idea that a woman in the mother’s position should be cross-examined (as on this hypothesis would almost inevitably be the case, for how else is cross-examination likely to elicit the relevant information) as to the nature, extent and duration of her relationship with the father. In relation to matters as personal and intimate as this we should be wary of seeking to open windows into people’s souls. And would it in any event be right to subject the mother to prying cross-examination on the (probably dubious) double hypothesis that she is at present not telling the truth but that, if cross-examined, the truth will out?

 

And in any event, where would cross-examination get us? It is possible that the mother would in fact make further disclosures, though I rather doubt it. Suppose, as I think much more likely, that she makes no further disclosures of any significance. I might, for all I know, be left with a powerful impression that she was not telling the truth, but that of itself would get us nowhere. Contempt could not be proved unless I was satisfied to the criminal standard – satisfied so that I was sure; satisfied beyond reasonable doubt – that the mother was telling lies. That, I suspect, is an unlikely outcome. And suppose that I was satisfied to the criminal standard that she was telling lies. Could it seriously be suggested that she should be punished, even sent to prison? Surely not. Punishment would surely be unthinkable.

 

The whole process smacks too much of the Inquisition to be tolerable. And it is not to be justified merely because we believe, however strongly, that what we are doing is being done in the best interests of a child. Here again, as it seems to me, the wise words of Holman J have a powerful resonance.

 

We can reason with someone in the mother’s position. We can seek to persuade. But we should not seek to force or to coerce – and how else in this context could one sensibly characterise the threat of cross-examination or the threat of punishment for contempt. Of course, as Holman J pointed out (see Z County Council v R [2001] 1 FLR 365 at page 375), the matter is not to be determined on the say-so of a mother, but we have to face the realities. And the reality here, in the particular circumstances of this case is, I am quite satisfied, that we have to accept what the mother has told us. It would be wrong to push matters any further. I decline to do so.

 

Mum can be asked, and persuaded to give the name of the father, but if she absolutely refuses, that’s an end to it. The Court are not going to compel her to give evidence, or commit her to prison if she refuses to answer. It would be advisable to record the efforts to explain the benefits to the child of knowing their father’s identity and her responses, but you can’t make her.

 

If the mother does provide the details of the father but asks that he not be contacted

 

the relevant case is

 

M v F [2011] EWCA Civ 273

 

http://www.familylawweek.co.uk/site.aspx?i=ed81462

 

 

  1. Mr Anelay and Mr Squire accept that “the starting point is that [F] should know of the existence of his son and should be able to participate in future care and adoption proceedings” and that “only in an exceptional case should that general rule be overridden”. This realistic position accords with the authorities as I see them. I would observe, in passing, that this approach is also consistent with another strand of authority which includes, notably, the House of Lords decision in Re D (Adoption Reports: Confidentiality) [1996] AC 593. That case was concerned with whether particular evidence (part of a report of the guardian ad litem) should be disclosed to the mother in contested adoption proceedings but the five principles which Lord Mustill identified as governing that decision are illuminating when considering the more fundamental prior question of whether a parent should be informed of the very existence of the proceedings or even that they have a child. The principles are set out at page 615 of the report. All repay consideration. They culminate in the following:

 

“5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

In Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828 the Court of Appeal added that the interests of the adult parties may also support non-disclosure in an appropriate case.

 

  1. The appellant’s complaint is that the judge did not just look for exceptional circumstances but proceeded on the basis that only a significant physical risk would do and this was to set the test too high.

 

  1. I agree that the authorities do not impose a requirement of significant physical risk. Harm and risk come in many guises and, like Thorpe LJ, I would be anxious about attempting to define what may make a case exceptional enough to justify departing from normal principles. It may be a moot point whether Mostyn J was actually setting himself a test involving significant physical harm or, as Thorpe LJ says, simply emphasising the high hurdle that will have to be overcome before a father who is married to the child’s mother and also living with her is kept in ignorance of the fact that he has a child and deprived of the chance to participate in the legal process relating to that child. Whatever the judge had in mind, however, the balance was inevitably going to come down against M’s applications and his determination is not in any way undermined by this reference of his to a significant physical risk.

 

 

 

  1. However, the judge found, critically, that there was no medical or other expert objective evidence that supported M’s case, that it was “pure supposition” that revealing the child’s existence would affect F as adversely as M suggested it would, and that at most there would be a “degree of upset and confusion” which the judge was hopeful could be mitigated if the revelation was managed appropriately. This was not the sort of harm that would justify keeping F ignorant of his son’s existence and, as I have already observed, her application was bound to be refused.

 

 

Therefore, the Local Authority would need to explore with the mother her reasons for not wanting father to be told, and assess whether those reasons were sufficient to displace the starting point that F should know of the existence of his child and be able to participate in future care and adoption proceedings –  the LA can examine the risk and gravity of the feared harm – but it is not REQUIRED that there be a significant physical risk.

 

In Re JL,  both parents were aware and consenting to the relinquishing of the baby. There must be an element of doubt in a situation where a father does not know of the existence of the baby that it can be treated as a consensual adoption and thus that “nothing else will do” does not apply.

 

From Re X 2007 (as referred to above)

 

Rule 108 of the Family Proceedings (Adoption) Rules 2005 enables a local authority in circumstances such as this to “ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.” So whether under the inherent jurisdiction or under that rule I plainly have jurisdiction to give the local authority the relief it seeks.

 

 

This is now  Family Procedure Rules 2010

 

14.21.  Where no proceedings have started an adoption agency or local authority may ask the High Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.

 

 

So either under the Inherent Jurisdiction OR under FPR 2010 14.21 the Local Authority may ask the High Court for directions and guidance as to whether a father without PR should be told of the plan for the child to be adopted, and that is probably the safest way to resolve that issue.

Bear in mind the decision of Holman J in Re A and B and Rotherham Metropolitan Borough Council 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/47.html

 

Where a father without PR who knew nothing about the care proceedings or adoption proceedings found out at a later stage and challenged the adoption successfully, with the child being placed with the paternal aunt.  So a prospective adopter taking a child where the father has not been told does do so at some risk that a later challenge by said father might succeed in moving the child.

Right, so until the Courts are asked to deal with a relinquished baby where the child was concieved under a surrogacy arrangement, or an artificial insemination arrangement, or an international surrogacy, we know where we stand.

 

 

Advertisements

An answer on relinquished babies and Re B-S

 

FINALLY! An answer to whether Re B-S and Re B apply to relinquished babies. Also an answer to mind-blowingly tricky stuff about whether a foreign parent who has a baby in England can relinquish without their home country being told, and how the heck to do a foreign placement with a relinquished baby. It is all here.

 

 

  • Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. Instead, they must approach the case by applying s.1 of the 2002 Act as set out above, making sure that they give paramount consideration to the child’s welfare throughout his or her life and allocating such weight as they consider appropriate to the comprehensive list of factors in s.1(4) In such cases, the local authority and the court must consider the parents’ wishes that their child be adopted in the context of all of those factors, including the child’s background, the likely effect on the child of having ceased to be a member of the original family and the ability and willingness of any of the child’s relatives to meet the child’s needs. As in the case of step-parent adoptions, the manner in which the statutory provisions are applied will depend upon the facts of each case and the assessment of proportionality.
  • It follows therefore that in all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S. Indeed, a thorough analysis of all the realistic options should surely be carried out in all cases where a local authority is making plans for a child’s future.

 

The analysis of the realistic options applies, but the test of “nothing else will do” does not. Just in case it wasn’t clear enough up there, the Judge says it again.

 

(2) The decision of the Supreme Court in Re B [2013] UKSC 33 concerned non-consensual adoptions. Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents’ wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate. It follows, therefore, that approval of adoption in such cases does not depend on the local authority or court reaching the conclusion that nothing else will do. But the parents’ wishes, although important, are not decisive. They must be evaluated along with all the other factors in the welfare checklist in s.1(4) of the 2002 Act. In all adoption cases – non-consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child, as highlighted in Re B-S [2013] EWCA Civ 1146.

 

[Also, the Court ruled that with a child of foreign nationals who are relinquishing their baby for adoption, there is NO duty on the Local Authority – or the Court when later considering an adoption application to notify the foreign consulate in accordance with the Vienna Convention. ALTHOUGH, you now need to make sure that the Court doesn’t appoint a Guardian at the adoption hearing, or the Vienna Convention duties do arise. Damn.]

 

(3) Article 36 of the Vienna Convention on Consular Relations 1963 does not apply in cases where a child has been relinquished for adoption because the child in those circumstances is not being “detained”. Following the decisions in Re E [2014] EWHC 6 (Fam) and Re CB [2015] EWCA Civ 888, Article 37 of the Convention applies where a guardian is appointed in placement order or adoption proceedings.

 

 

Baker J in Re JL (2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/440.html

 

He goes on to outline the five options that a Local Authority has when parents relinquish their baby for adoption  (agree to have their baby adopted, in plain English)

 

 

  • Having carried out its assessment, the local authority will reach one of the following conclusions.

 

(1) It may conclude that adoption in this country is in the best interests of the child. In such circumstances, it can proceed formally to obtain the parents’ consent. If consent is given in the prescribed way, the local authority becomes “authorised” to place the child for adoption under s.19. As I read s. 22, if the local authority is authorised under s.19, it is not obliged under s.22(1) to apply for a placement order as the condition in s.22(1)(b) is not satisfied and, unless the child is subject to a care order or of ongoing care proceedings, it has no power to apply for an order under s.22(2) or (3). In such circumstances, therefore, it is neither necessary nor possible for the local authority to apply for a placement order.

(2) It may conclude that the child should be placed with family members or fostered in this country. In such circumstances, it may place the child under s.20 provided that the provisions of that section, and the other provisions of Part III of the Children Act 1989 and the associated regulations, are satisfied. In particular, under s.20(7) it may not arrange such accommodation if a parent with parental responsibility is able and willing to accommodate or arrange accommodation for the child themselves objects to the local authority’s proposal and in the absence of consent must apply for a care order. S. 20 has been considered in a number of cases, most recently by the Court of Appeal in Re N, supra, (see in particular the judgment of Sir James Munby P at paragraphs 157 to 171). Although both JL and AO are at present accommodated under s.20, that jurisprudence does not impinge on the issues in either of the cases before me and need not be considered further in this judgment.

(3) It may decide to place the child with family members in the country of origin. If the parents give their consent, it may proceed to arrange the placement without court approval. If the child is subject to a care order, however, it may only do so with the approval of the court: Children Act 1989, Schedule 2 para 19(1) and (2).

(4) It may decide that the child should be placed with prospective adopters that have been identified in the country of origin. In those circumstances, the procedure under s.84 may be available, and if so schedule 2 para 19 does not apply: schedule 2 para 19(9).

(5) It may decide to send the child to the foreign country so that the authorities there can arrange the adoption. This last course is the option which the local authority considers to be best in AO’s case. In those circumstances, s.85 will prevent the local authority sending the child to the foreign country unless the child is subject to a care order and the court makes an order under Schedule 2 para 19.

Number 3 is obviously the important one with relinquished babies.  In care proceedings, parents get to put forward family members who they wish to be assessed as potential parents. What happens with parents of a relinquished baby if the Local Authority WANT to assess family members, or need to rule them out, but the parents want privacy and don’t want them approached?

Well, the Court of Appeal had previously ruled  in Re C  v XYZ Local Authority 2007  http://www.familylawweek.co.uk/site.aspx?i=ed1147  that :-

3. In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child’s background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.

It has been a bit ambiguous as to whether this still stands, and it would not if the Court rule that relinquished adoptions are subject to the “nothing else will do” test of Re B. Baker J has cleared up that they aren’t, so Re C v XYZ 2007 remains the law for relinquished children and assessing wider family – only if the enquiries genuinely further the prospect of finding a long-term carer without delay.  The LA aren’t obliged to rule out individual members of the family, just to explore those who would satisfy that test.  Re C v XYZ seems to me to be completely compatible with Baker J’s strictures here that the LA must consider the ‘realistic options’ for the child, even where the parents have agreed or requested adoption.

 

Assessing family members where parent doesn’t put them forward or objects

 

In this case, Cobb J was asked to determine an interesting question. In a set of care proceedings, if the Local Authority were aware of extended family members but the parents didn’t put them forward as carers  did the LA have a duty to assess them?  And, given father objected to it, did the LA have the power to talk to the family without his consent?

 

RE H (Care and Adoption : Assessment of wider family) 2019

 

https://www.bailii.org/ew/cases/EWFC/HCJ/2019/10.html

 

Set-up

 

In public law proceedings under Part IV of the Children Act 1989 (‘ CA 1989 ’), social work assessments are commonly undertaken of members of the subject child’s wider family or friends who are proposed as potential carers in the event that the child cannot be safely placed with parents.  The issue which arises in this case is whether a local authority is required, by statute or otherwise, to notify wider family members of the existence of the subject child, and/or assess them, when they are not proposed by parents as potential alternative carers, and where the parents (or either of them) specifically do not wish the wider family to be involved.

 

In the particular case, the child was 5 months old, there had been two previous children removed. The parents were fighting the case and striving to care for the child. There was a long history of parental substance abuse and alcohol abuse and some allegations of domestic violence.

Some of the extended family knew of the child’s existence, some didn’t. None were put forward by the parents as potential carers if the parents were ruled out by the Court.

The LA  Agency Decision Maker (who decides whether the LA can put forward a plan of adoption ) wanted to know whether any of the extended family were an option to care for this child.

The father said that none of his family would be in a position to care for the child, and he did not want them burdened with knowing that there was a child when they could do nothing about it.

 

So the LA wanted to talk to his family to see if any of them could care for the child, father objected to them doing so.

 

There were a few relevant authorities, but most of them dealt with there not being a duty on the LA in a case where the child is relinquished (given up for adoption) to approach family members or rule them out (although if there’s a genuinely realistic option it ought to be explored).  The Court here was being asked to decide whether to extend that principle from agreed adoption to non-consensual adoption cases, or whether different principles applied.

It being a Cobb J judgment, it contains a beautiful and clear analysis of all of the pertinent law and guidance.  It is a short judgment, so I recommend reading it.

 

I’m going to race ahead to the conclusion though.

 

Firstly, and importantly, Cobb J considered the  submissions of all parties that there was an assumption of a duty on a LA to explore family members who were not actively being put forward  (where they did not know about the child) and had some doubts that the case law established such a duty.

 

The submissions of all the parties proceeded upon an assumption that the local authority has a general duty to assess the wider family in these circumstances.  In this regard, I was referred to the decision of Theis J in Royal Borough of Greenwich v Adopters [2018] EWFC 87, in which she said this at [11]:

What this case has highlighted is the critical importance of a local authority having effective systems in place from an early stage in care proceedings to ensure that the wider maternal/paternal families are considered as possible placement options for the children . Whilst it is recognised that the parents should put forward any names they want to be considered, that does not absolve the local authority of the enquiries they should independently be making . The continued retort by the local authority that the parents had failed to put anyone forward failed to recognise these are parents who failed to provide the basic care for their children or provide basic co-operation within the care proceedings, this local authority should have undertaken their own enquiries . ” (emphasis by underlining added).

16.               I do not read Theis J’s comments as establishing, or specifically referring to, any free-standing duty to assess wider family who are unaware of the existence of the child.  Indeed, the specific issue arising for determination here caused me to question from where counsel’s assumption about the obligation derives, how far it extends, and what policy or other guidance informs how far it should be applied. 

 

Cobb J looked at a piece of guidance on Initial Viability Assessments, published by the Family Rights Group.  (I’ll declare an interest here, as I had a teeny-weeny part in the drafting of this. Honestly, teeny-weeny)

 

Important guidance published in February 2017 by the Family Rights Group (FRG) (‘ Initial Family & Friends Care Assessment: A Good Practice Guide ’), with endorsement from, among others, the Family Justice Council, Cafcass, Association of Directors of Social services, and the Association of Lawyers for Children, makes this point somewhat more strongly (para.1.1, page 5):

“Where a child cannot remain in the care of their parents, research has consistently found that children placed in kinship care generally do as well, if not better, than children in unrelated foster care, particularly with regard to the stability of the placement. So it is essential that if a child may not be able to live safely with their parents, practitioners identify potential carers from within the child’s network of family and friends and determine whether they will be able to provide safe care to meet the child’s needs until they reach adulthood. ” (emphasis added).

27.               The FRG authors speak further of the importance of enabling wider family members to contribute to decision-making, including deciding when the child cannot remain safely with their parents (para.2.2, page 12):

“Where a child cannot live with their parents, it is the duty of local authorities to work in partnership with parents and relatives to identify whether there is anyone within the child’s network of family and friends who can provide the child with safe and appropriate care . Parents may suggest potential alternative carers and some family members may come forward themselves once they become aware there is a possibility that the child may not be able to remain in the parents’ care. In some cases local authorities may be faced with a large number of potential carers. In these situations, it is helpful to ask the parents and family and kinship network to identify a smaller number of carers who they feel would be most appropriate to be assessed to care for the child.  Family group conferences are not a legal requirement; however, they are recognised as a valuable process for involving the family early so that the family can provide support to enable the child to remain at home or begin the process of identifying alternative permanence options.” (emphasis by underlining added).

 

The conclusion

 

[I am such a sad geek that I was actually on tenterhooks here!]

 

Conclusion

44.               The simple but not unimportant issue raised in this case has given me cause to conduct a reasonably widely-drawn review of statute, guidance and case-law. Drawing the strands of this review together, I have reached the conclusion that I should accede to the application of the local authority.  I propose to give the father an opportunity to inform his parents himself of the existence of H.  He should be supported in this exercise by a social worker or by the Children’s Guardian, should he ask for it.  If he chooses not to notify his family himself, I shall authorise the local authority to do so.

 

First, repeating a point made earlier (see [22]), none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here.  However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare .

 

Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case, taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child. 

49.               In exercising that broad discretion, I would suggest that the following be borne in mind.  There will be cases (if, for instance, there is a history of domestic or family abuse) where it would be unsafe to the child or the parent for the wider family to be involved in the life of the child, or even made aware of the existence of the child.  There will be cases where cultural or religious considerations may materially impact on the issue of disclosure.  There will be further cases where the mental health or well-being of the parent or parents may be imperilled if disclosure were to be ordered, and this may weigh heavy in the evaluation.  But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent.  Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow ( section 1(4)(f)(ii) ACA 2002 ) should be carefully scrutinised, and the option itself should be “fully explored” (see [28]).  The approach taken by Sumner J in the Birmingham case more than a decade ago, to the effect that “cogent and compelling” grounds should exist before the court could endorse an arrangement for the despatch of public law proceedings while the wider family remained ignorant of the existence of the child (see [29] above), remains, in my judgment, sound.  This approach is in keeping with the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child’s interests (see Re B (A child) and Re B-S ).

50.               As the DfE and FRG and associated guidance makes clear (see [25]-[27] above), good social work practice requires the early identification of family members who may be able to provide safe care to meet the child’s needs, and/or contribute to the decision making in respect of the child where there are child protection or welfare concerns; the FRG rightly refers to a “duty” on local authorities to work in partnership with parents and relatives.  It was this exercise which Holman J in Z County Council v R [2001] described when, at p.375 ibid., he referred to the fact that “there should normally be wide consultation with, and consideration of, the extended family; and that should only be dispensed with after due and careful consideration ” (my emphasis by underlining).

 

 

The line of ‘relinquished’ baby cases discussed above ([33] et seq .), where the court is prepared to offer discreet and confidential arrangements for the adoption of a child, all emphasise the exceptionality of such arrangements; in those cases, the court is only ever likely to authorise the withholding of information in order to give effect to a clear and reasoned request by a parent to have nothing to do with the child, usually from the moment of birth.  In those cases, the local authority, adoption agency and the court seek to maintain the co-operation of the parent in making consensual arrangements for the child (a key feature of the decision in Z County Council v R (Holman J)) which is greatly to the child’s advantage. 

 

 

 

So not a duty in the ‘statutory’ sense, but unless there are cogent and compelling reasons to not explore the extended family  /  due and careful consideration of the reasons not to explore them, the Court should be very careful about proceeding with a plan of adoption.  That does seem that it is not as simple as the Local Authority saying “well, the parents didn’t put anyone forward”

 

The judgment doesn’t really deal with the power the LA has to share information with the wider family (after all, approaching Auntie Beryl to see if she can care for Little Timmy is inherently telling her that there are reasons why mum and dad aren’t able to) and the GDPR aspects.  In this case, that’s solved by the Court authorising it, and it may be that this is the best solution – to float that there IS an Auntie Beryl who the LA would want to explore and either seek parental consent to do so or have a direction from the Court.

 

 

Consent to adoption where the parent is themselves still a child

An exceptionally sad and legally difficult case, handled with care and delicacy by all involved.

Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2729.html

2.S is a young person; she is under 16 years of age. S suffers from developmental delay and learning disabilities. Approximately 12 weeks ago, S gave birth to a baby (T). T was delivered by caesarean section under general anaesthetic. The putative father of the baby is an adult.


3.S wishes nothing to do with the baby, T. She has not seen T. She has not named T. She did not want to know the gender of T, but has recently discovered this by accident; S then wanted to know T’s given name. S does not want the father to have anything to do with T. T was placed with foster-to-adopt carers directly from the hospital, accommodated under section 20 Children Act 1989 (‘CA 1989’) with S’s agreement. S wishes for T to be adopted, as soon as possible

This is an unusual case in that everyone in the room was very clear that the outcome for T would be adoption and that this was the right thing for T, but the difficulty was in how to get there.


5.All parties agree that the ultimate outcome of the current legal process is overwhelmingly likely to be the adoption of T. The route by which that objective is reached is more contentious.

6.The central issue for determination is S’s competence to consent to the placement of T for adoption, and T’s adoption; in the event of S’s incompetence on this issue, I am asked to consider the route by which T’s legal status can be secured. That issue, and the associated issues arising on these facts, have been broken down as follows (taking them in the chronological and I believe logical sequence in which they arise):

i) By what test does the court assess generally the competence of a child as a decision-maker?

ii) Can a child parent give consent to accommodation of their child (under section 20 Children Act 1989), even if assessed to lack competence in other domains, including litigation competence in associated / simultaneous adoption or placement proceedings?

iii) What is the test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby?

iv) Should steps be taken to help the child parent to reach a competent decision?

v) In what factual circumstances is the section 31(2) CA 1989 ‘threshold’ likely to be met in relation to a relinquished baby, so as to found jurisdiction for the making of a placement order under section 21(2)(b) ACA 2002?

vi) Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?

There was an argument as to exactly how much understanding S would need to have (or reach) about what adoption involves – does she need to understand what a Placement Order is and what an adoption order is?

If I may say so (and I may, because this is my blog), Bridget Dolan QC makes one of the best points I have ever seen in relation to that


36.Although not cited in argument, I further remind myself of the comments of Chadwick LJ in the Court of Appeal in Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511: at [79]:

“a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language”

So, says Ms Dolan, it is not necessary for S to understand all the peripheral and non-salient information in the adoption consent form in order to be declared capacitous. Nor does she even need fully to understand the legal distinctions between placement for adoption under a placement order and not under a placement order. Indeed, Ms Dolan herself relies in this regard on Re A (Adoption: Agreement: Procedure) at [43] where Thorpe LJ observes that the differences between freeing and adoption are:

“… complex in their inter-relationship and it is not to be expected that social workers should have a complete grasp of the distinction between the two, or always to signify the distinction in their discussion with their clients” (my emphasis).

If social workers are not expected to understand the complexities of the legislation (or its predecessor) or explain the distinction accurately to the parents with whom they are working, asks Ms Dolan, why should a person under the age of 16 be expected to be able to grasp them in order to be declared capacitous?

If I may quote from Kite Man :- “Hell yeah”

HELL YEAH

I don’t think it is generally considered becoming to mic-drop after making an awesome point in the High Court, but I think it was warranted for that.

Did I mention “Hell yeah” before I dropped that? Oh, you can’t hear me now…

Cobb J helpfully draws together some guidance on what exactly a person should be able to understand when agreeing to s20 accommodation, and what exactly a person should be able to understand when agreeing to adoption. This is extremely clear and helpful. Of course.

60.I see considerable merit in borrowing key aspects of MCA 2005 and importing them into the assessment of Gillick competence of a young person at common law, in order to maintain a consistency of approach to the assessment of capacity of adult decision-makers and children decision-makers. Just as the capacity threshold should not be set artificially high under the MCA 2005, nor should it be for children. It follows that in order to satisfy the Gillick test in this context the child parent should be able to demonstrate ‘sufficient’ understanding of the ‘salient’ facts around adoption; she should understand the essential “nature and quality of the transaction”[12] and should not need to be concerned with the peripheral.

61.It will, however, be necessary for the competent child decision-maker to demonstrate a ‘full understanding’ of the essential implications of adoption when exercising her decision-making, for the independent Cafcass officer to be satisfied that the consent is valid. If consent is offered under section 19 and/or section 20, it will be necessary for a form to be signed, even if not in the precise format of that identified by PD5A. I accept that on an issue as significant and life-changing as adoption, there is a greater onus on ensuring that the child understands and is able to weigh the information than if the decision was of a lesser magnitude (see Baker J said in CC v KK & STCC [2012] EWHC 2136 (COP) (§69)). This view is consistent with the Mental Capacity Code, which provides at para.4.19:

“… a person might need more detailed information or access to advice, depending on the decision that needs to be made. If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision” (emphasis added).
62.By way of summary and conclusion, I distil the following principles from my analysis above:

i) The test of competence for decision-making of a young person is that set out in the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112 (“Gillick”) (“a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”); in this regard, the child should be able to:

a) Understand the nature and implications of the decision and the process of implementing that decision;

b) Understand the implications of not pursuing the decision;

c) Retain the information long enough for the decision-making process to take place;

d) Be of sufficient intelligence and maturity to weigh up the information and arrive at a decision;

e) Be able to communicate that decision.

ii) The determination of a child’s competence must be decision-specific and child-specific; It is necessary to consider the specific factual context when evaluating competence;

iii) Just because a child lacks litigation competence in (for example) care or placement order proceedings does not mean that she lacks subject matter competence in relation to consent to section 20 CA 1989 accommodation of her baby, or indeed to the adoption of the baby;

iv) The assessment of competence must be made on the evidence available;

v) When considering the issue of Gillick competence of a child parent, an important distinction must be drawn between the determination of competence to make the decision, and the exercise by that young person of their competent decision making;

vi) The relevant information that a child under 16 would need to be able to understand, retain and weigh up in order to have competency to consent to the section 20 accommodation of a child would be:

a) That the child will be staying with someone chosen by the local authority, probably a foster carer;

b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time;

c) That the parent will be able to see the child

vii) The salient or “sufficient” information which is required to be understood by the child parent regarding extra-familial adoption is limited to the fundamental legal consequences of the same; this would be:

a) Your child will have new legal parents, and will no longer be your son or daughter in law;

b) Adoption is final, and non-reversible;

c) During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live;

d) You may obtain legal advice if you wish before taking the decision;

e) The child will live with a different family forever; you will (probably) not be able to choose the adopters;

f) You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited;

g) The child may later trace you, but contact will only be re-established if the child wants this;

h) There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted;

i) For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.

viii) When determining the competence of a child parent in these circumstances, “all practicable steps to help” her, as the decision-maker, to make the decision, must have been taken; a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means).

ix) The decision to consent to adoption is significant and life-changing; there is a greater onus on ensuring that at the decision-making stage the child understands and is able to weigh the information;

x) Before exercising her decision-making, the child parent should freely and fully understand the information set out on the consent forms (which information is drawn from the ACA 2002 and from the Regulations); the information should be conveyed and explained to the young person in an age-appropriate way; there is no expectation that the young person would be able to understand the precise language of the consent forms;

xi) The question whether the threshold criteria is established in a relinquished baby case (section 21(2)) ACA 2002) is one of fact;

xii) If there is any doubt about the competence of a child parent to give consent to adoption or placement for adoption, the issue should be referred to a court.

The Court also say that the person can be helped in their comprehension and understanding – obviously considerable care needs to be taken not to lead or influence any decision.

41.When determining capacity under the MCA 2005, a court must be satisfied that “all practicable steps to help” the decision-maker to make the decision have been taken (section 1(3) MCA 2005). I see no real reason to take a different approach, indeed every reason to follow the approach, in relation to a child parent in these circumstances. Adapting the language of section 3(2) MCA 2005, a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means).

42.While there were differences of emphasis in argument on this point, all parties before me appear to agree that it would indeed be reasonable to give S some age-appropriate information about adoption in an age-appropriate way in order to enhance her decision-making potential. This should not, in my view, involve a lengthy programme of class-room teaching, or anything of that sort; it may in fact be done in one reasonably informal session, but it would probably be better done in two or more sessions over a short period, to give her the chance to assimilate the information and improve her understanding of it. The information shared with S in this exercise should not violate her clear desire to know nothing specific about T nor T’s situation.


43.This approach enhances S’s right to exercise autonomous decision-making under Article 8 ECHR; this is a matter of considerable importance, given the significance of the issue for both S and T.

In this case, the Court directed an assessment of capacity to look at all of these issues. The Court had to look at whether threshold would be met IF the mother did not have capacity to agree to adoption (since the alternative legal route requires that threshold is established)

44.There is a dispute between the Local Authority on the one side, and the respondents (the mother and child, through their guardians) on the other, as to whether the threshold criteria are established for the purposes of section 21(2)(b) ACA 2002; it is clear that neither section 21(2)(a) nor (c) are satisfied.

45.This raises, essentially, a question of fact. I have not in fact been asked to decide the question of fact, but have been addressed on the issue, and consider it right to express my view.

46.Relinquished baby cases fall into a special category of public law cases, where conventional concepts (if I may so describe them) of harm, significant harm, and likelihood of harm do not generally arise. The question, therefore, is whether, and if so in what circumstances, a relinquished baby would be the subject of a care or placement order. The decision of Cazalet J in Re M (Care Order)(Parental Responsibility) [1996] 2 FLR 84 is an example of a case where the threshold was found to have been met; this case concerned a baby boy who was only a few days old and was abandoned in a hold-all on the steps of a health centre. Cazalet J found the threshold proved under section 31(2) CA 1989, saying:

“the very fact of abandonment establishes that M [the child] was suffering from significant harm immediately before the rescue operation was carried out by the two workers from the clinic. To leave a child a few days old, alone and abandoned as occurred here, with all the risks that such entails, shows in the clear terms a complete dereliction of parental responsibility. ‘Harm’ means ‘ill-treatment or the impairment of health or development’ (see s?31(9) of the Children Act 1989). To abandon a child in the manner in which M was abandoned must constitute ill-treatment. Accordingly, I consider that M was suffering from significant harm immediately prior to being found by the clinic workers”

Cazalet J further found that M was likely to suffer significant harm by reason of knowing nothing of his parentage, background or origins.
47.In Re M & N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, I found the ‘threshold’ (under section 21(2)(b) ACA 2002) established in relation to relinquished twins, having concluded that the mother had made few preparations for their future care (see [8]) and had been only intermittently co-operative with health professionals; both parents had abrogated responsibility for the children (see [26]), without any ostensible regard for their well-being. In that case, no party argued that the threshold was not met.

48.By contrast, in Re AO, Baker J concluded that the threshold was not made out, where the parent had made reasonable arrangements for the welfare of the relinquished baby. He said this at [19]:

“… the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably”.

In the preceding judgment in the same case dealing with jurisdiction issues (Re JL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) at [50]), Baker J had made the point (reinforced above) that the relinquished baby may be caught by the threshold criteria, but it all depends on the individual facts and the circumstances of the singular case.
49.In this case, the Local Authority assert that the threshold is made out under section 21 ACA 2002. They rely on a combination of factors including the lack of a relationship between mother and child, the lack of contact or interest in the child’s welfare, and the assertion that “the mother has rejected the child outright with vehemence”.

50.Mr. Spencer and Miss Cavanagh dispute that the threshold is established in this case; they reject the proposition that T has suffered harm or is likely to suffer harm. They point to the reasonableness of the mother’s decision-making, which she has reached in concert with the social workers from the moment she knew she was pregnant. They argue that, while each case must be viewed on its own facts, the facts here are closer to those described by Baker J in Re AO than I described in Re M&N.

51.Having reflected on the material before me, I am inclined to agree with Mr. Spencer and Miss Cavanagh. This is a case in which for some time before T’s birth, S had made reasonable plans for her baby; unlike the mother in Re M&N she prepared for the birth of her baby, and co-operated with the professionals both before and after the birth. She participated, doubtless at considerable personal distress, to ante-natal screenings and checks over a number of weeks. That she has been clear in her wish to have nothing to do with T now does not represent her dereliction of parental responsibility, but an exercise of it.

52.I do not propose formally to rule on this issue, as the hearing had not been set up for me to hear factual evidence on the threshold point. But I rather suspect that the undisputed facts are sufficiently well-established on the papers as to render such exercise unnecessary, and the provisional view I have articulated above will be enough to allow the parties to chart the way forward.

So IF mother lacks capacity to consent to adoption AND threshold is not met on the facts of the case, what is left?

Well, a private adoption is mooted, but that’s not straightforward either. It really depends whether the carers (who are foster-to-adopt carers) are considered as prospective adopters (when they can apply after 10 weeks) or foster carers (who would have to wait for a year) and that’s not a straightforward thing to resolve.

Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?
53.The first point to note is that while the court can declare that an adult has, or does not have, capacity to consent to adoption, the court cannot actually give consent to adoption on behalf of the incapacitous adult parent (see section 27(1)(e)/(f) MCA 2005).

54.In the circumstances posed by this question (which Miss Cavanagh submits is a real likelihood on these facts) it is suggested that the adoption could proceed as a private adoption on these facts under section 44 (see [12] above), with the prospective adopters serving notice of intention to adopt, and within that application, the court may dispense with the consent of the mother under section 47(2)(c) on the basis that T’s welfare demands it. Although there is a reasonable argument that T has been placed with her current carers as adopters (see generally on this Re A (Children) (Adoption: Scottish Children’s Hearing) [2017] EWHC 1293 (Fam); [2017] 4 WLR 1), there are two likely difficulties in that approach

i) There is an argument that T was placed with the foster-to-adopt carers straight from hospital “otherwise than as prospective adopters” (see section 44(8)(a));

ii) T’s consent to this placement was obtained within 6 weeks of T’s birth and is therefore ineffective as a consent to placement for adoption[11].

It seems possible for me to order the placement of T with the foster-to-adopt carers under section 42(2)(a), but the better option may be, as Miss Cavanagh proposes, that the section 44 route is deployed by which an adoption application could be issued, and S’s consent dealt with in that context.
55.Mr. Spencer, who like Miss Cavanagh contemplates the outcome posed by the question above, proposes that if the statutory route does not lead to a satisfactory answer, the court could invoke the inherent jurisdiction to ‘regularise the position’ and authorise the placement of T with the proposed adopters. For my part, I am satisfied on the current facts, that there is a sufficient prospect that the provisions of Chapter 3 of the ACA 2002 discussed above will offer a solution in this case; if S’s consent is not, or cannot be, validly given to T’s adoption or placement for adoption, I shall hear further argument on the precise route-map to the outcome to which all aspire.

Bone marrow transplants and struck off doctors

 

 

 

 

This is a very peculiar Court of Protection case, decided by the President.  Very peculiar is a massive understatement, to be frank.

SW, Re [2017] EWCOP 7 (12 April 2017)

http://www.bailii.org/ew/cases/EWCOP/2017/7.html

 

As the acronyms are a bit confusing, I’ll give us a cast list

 

 

SAN – a man who has cancer. It is said that he needs a bone marrow transplant to save his life, as a result of this.

 

SW – SAN’s adopted sister, and a woman about whom it is alleged lacks capacity to make decisions in her own right.

 

Son – the son of SW, who does have capacity, and who applied to Court for a declaration to be made that SW undergo surgery in order to donate bone marrow to SAN and that the surgery be undertaken by the next two members of our cast.

Dr Waghorn – a surgeon, who coincidentally is the husband of SW and the father of Son. He has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

Dr Jooste – another surgeon – a family friend and colleague of Dr Waghorn. He too has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

 

The intention is that Dr Waghorn and/or Dr Jooste would carry out the transplant surgery.  By the way, don’t assume that SAN is keen on having this surgery. Or even that Son, Dr Waghorn or Dr Jooste have recently asked him if he wants it or consents to it.

 

 

Are you a dreadful cynical hard-bitten creature? Are your internal alarm bells going off loudly and causing dogs in your vicinity to bark furiously at the hellish clamour that was produced by the ‘relinquished his membership with the GMC’ bit?

 

 

This is the size of dog that is proportionate to how loudly my ‘WARNING’ alarm bell is ringing

 

(If Amazon suddenly get a spike in DVD orders for that film, I should get a cut. If you haven’t seen it,     ch-ch-ch-ch-check it out)

The Judge explored that a little further

 

6.In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel’s findings make for very disturbing reading.

 

 

7.In relation to Dr Waghorn the Panel said this

 

“The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn’s breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic.”

 

In fact, as appears from the Panel’s determination, Dr Waghorn had been convicted at the City of Westminster Magistrates’ Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8.In relation to Dr Jooste the Panel said this:

 

 

 

“Dr Jooste is a risk to patient safety …

 

The Panel also considers that there is a risk to patient safety in Dr Jooste’s unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court.

 

The Panel has received no evidence of any mitigating factors …

 

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste’s misconduct or to protect public confidence in the profession.

 

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste’s misconduct is fundamentally incompatible with his continued registration as a doctor.”

 

 

What is your prediction, at this point, as to whether the President is going to allow two doctors with this record to perform surgery on a woman with no capacity (who happens to be the wife of one of them…) ?

 

Yeah, me too.

 

To echo erstwhile comedian and labelled-welly-wearer Jimmy Cricket, come here, there’s more

 

9.As appears from his application form and the attached Annex E, the son made the application as SW’s attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW’s attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW’s signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW’s “friend for 10 years.” Both Dr Waghorn and Dr Jooste were described as “Dr” though each had by then been struck off.

 

There had also been litigation in the Court of Protection involving not SW as the vulnerable person but SAN

On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

 

 

11.So far as material for present purposes, what Newton J said was this:

 

 

 

“… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity …

 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

 

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

 

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

 

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction: there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

 

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN’s] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary).”

 

A company then sought to judicially review the NHS decision in this case not to allow surgery. Coincidentally, two directors of that company were Dr Waghorn and Dr Jooste. That application was dismissed on 9 June 2015 by Hayden J as being “totally without merit.” The judge observed that “The claim is at best vexatious, nor is it presented in any coherent or logical manner.”

The President remarks :-

13.There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

 

Dr Waghorn sought to involve the Anthony Nolan charity as interveners. Unsurprisingly, they declined. In much the same way that I would decline an invitation to “Tequilla-Fueled Sword Swallowing for Beginners, followed by candlelight dinner with Katie Hopkins and Eric Pickles”

 

 

 

15.Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

 

 

 

“… I would like to underline that we do not want to be involved in this case.

[Almost word for word what I said to Katie and Eric, btw. Well, actually, my response had certain rhyming qualities with the description of these two doctors in the title of the blog post…]

 

Anthony Nolan’s position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

 

As such we do not want to be involved in this case in any way.

 

Please do not contact us again about this case.”

 

Dr Waghorn’s riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

 

 

The Judge then considers the position of SW, noting that the evidence as to her capacity or lack thereof was rather deficient. Her IQ was now around 78, having been previously about 90. That isn’t of itself, suggestive of a lack of capacity.

 

25.Quite apart from the issue of SW’s capacity, there are three particularly striking features of this application:

 

 

 

 

  1. i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, “so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her].”

 

  1. ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that ‘obviously he will agree because no-one wants to die.‘ Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J’s findings. This omission is also very significant for another reason for, according to the son’s skeleton argument, allogeneic bone marrow transplantation carries “a significant risk of mortality” for the donee.

 

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with “clinical responsibility” for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant “treatment” is to be provided by one of these two struck off doctors. A prudent judge probably never says “never”, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26.A curious observation at the very end of the son’s skeleton argument, makes me wonder what, and who, are really driving this application. He is SW’s son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

 

 

 

“If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas.”

 

Is there some wider agenda at work here, and, if so, whose agenda is it?

 

 

I like “a prudent Judge probably never says Never”

 

 

 

As we all suspected, the application was dismissed, leaving just issues of costs and anonymity in any published judgment

 

33.As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.

 

 

34.The application must be struck out.

 

 

35.There remain two other matters I have to decide.

 

 

36.The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

 

 

37.As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is “at this present moment” unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

 

 

38.As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

 

 

39.I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

 

 

40.The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

The Hungarian Games

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case

Relinquishing for adoption and nothing else will do

This is a High Court case, decided in April, but the report of judgment has only recently come out. I’m grateful to Celtic Knot for ensuring that it came to my attention
I touched on the (at that time unresolved) issue of whether the raft of jurisprudence on ‘non-consensual adoptions’ also applied to step-parent adoptions and relinquished babies where the mother was giving the child up for adoption but the father was not identified/told.

https://suesspiciousminds.com/2014/04/12/step-parent-adoption-telling-the-birth-father/
and this High Court case Coventry City Council and A 2014 deals with the relinquished adoption issue (and my next blog post will deal with the Court of Appeal’s decision on step-parent adoptions)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2033.html
If you want the Too Long; Didn’t Read version – it is that I would be very cautious about relinquished adoptions particularly if there is any international element. If either parent is from another EU country, I would strongly urge you to read the judgment in Coventry CC and A. I suspect that it will make ‘relinquished adoptions’ considerably more protracted, complicated and expensive.
This case took nearly a year to resolve (with a baby that mother wanted to give up for adoption – so twice as long as fully contested care proceedings are intended to take)

Part of the reason why is that the mother was Romanian, and the High Court embarked on a process of notifying the Romanian authorities about the existence of the child and the potential order that would be made in the UK courts.

Let’s look at what mum had to say about her extended family

The hospital was able to contact the mother through her friend, Z, via a mobile phone and a meeting was arranged with the mother to attend the hospital on 7th June. Initially the mother failed to return but, ultimately, after some persuasion, she did so with her friend Z. She was spoken with through an interpreter speaking Romanian. At this meeting she gave her baby a name after some prompting with the social workers and held the baby for the first time showing some emotion in doing so. The mother gave information about her and her baby’s background. She said that the father was Romanian Roma but she was herself Romanian. She refused to provide the father’s name. She said that her family were not aware of her pregnancy. She had not told them about it or her relationship with the father and she had concealed the pregnancy from them. She said that her family would not approve of the relationship with the father as he was Roma and her mother would disown her if she knew. She wanted the baby to be adopted. She intended to return to Romania as soon as possible after she received her new travel documents.

She said she was from a named village in Romania, that she had two other children residing there, a son aged nine and a daughter aged ten and they were being cared for by their maternal grandparents. She had no money to support a baby. She said the father was aware of the pregnancy but was not interested and he was not aware that the baby had been born. She had come here on holiday to see her friend, Z, who came from the same area as the maternal grandparents. She had not told Z about the pregnancy until her waters broke. She said she had no fixed abode, she moved between the homes of various friends and had been evicted the evening before and was at that time staying with a friend of Z.

That seems, to me, to be a very clear message that the mother did not want her relatives approached or told of the existence of the baby.

Unfortunately, mother did not help herself because she didn’t attend the appointment with a CAFCASS officer to sign the adoption forms. Nor did she attend the second such appointment, and then she vanished.

The baby was thus not, in law, relinquished. Mother had agreed to give the baby up for adoption but had not signed the paperwork that would be a vital part of the process. That meant that rather than being a relinquished baby adoption, this had to go into care proceedings.

And, the case having gone into care proceedings, efforts had to be made to find and serve the mother.

[HUGE LESSON here – if you are dealing with a mother who wants to relinquish her baby, it is vital that she is made to understand that not filling out the forms is going to make life much worse for her. Fine to decide ‘I don’t want to sign them because I want the child back’, but ‘I don’t want to sign the forms because I want to stop thinking about this’ is just going to make things much much worse]

It made things much much worse for this mother here, because a process server was sent out to look for her in a Romanian village near Bucharest

The process server met with the mother’s own mother who is Romanian, who told him she is looking after the children at the family home, that the mother was not in Romania, she had left a few months ago to go to the United Kingdom. She said that the family believed she was working as a prostitute in the United Kingdom and recently had had problems and had been in hospital. The process server was unable to gain any further information but was able to say that the address in Coventry, which the mother had given to the local authority, did not exist.
In the second report, dated 30th November, the process server described the village as being small, about 100 kilometres from Bucharest, with “a majority gypsy population very poor and simple peoples.” He met with the mother’s own mother again who was shown a photograph of the mother. Initially she denied recognising the mother but later produced a copy of the mother’s ID card with a photograph of the mother. Whilst there, a niece of the mother identified the photograph as the mother and a sister of the mother did so as well. The grandmother then returned with a copy of the mother’s ID card and was able to confirm that the photograph with the process server was that of the mother. The process server then showed a photograph of the mother to a village policeman who identified it as that of the mother and said that she had been registered as missing but had returned to the address and was declared not missing. It seems he thought that she was probably in the United Kingdom and said that she did not have a relationship with her family. The local authority have been unable to trace the mother and has no information as to the father’s identity or whereabouts.

Remember, of course, that this mother did not want her family to know anything about the baby or to become involved. So that worked out marvellously for her. (I also dread to think how much Coventry had to pay for the Romanian equivalent of Jim Rockford to go out flashing this photograph of the mother around, including showing it to a village policeman)
The final upshot though, was that the mother was not found, and the care case thus proceeded in the absence of the mother, or a father.

What then happened was that the Court caused the Romanian authorities to be informed of the case. It took a while to get any response out of them, but once they started to respond, they got highly responsive, ultimately saying that they wanted the case transferred to Romania and were wholly opposed to a child of Romanian parents to be adopted, even where the mother herself was not opposing it.

 

the Romanian authorities have been informed as to the existence of A and the existence of these proceedings and the care plan for adoption. The care proceedings were issued on 9th August last year and the application for the placement order was on 14th October. These applications were transferred from the Coventry Family Proceedings Court to the Coventry County Court on 18th November 2013 due to the complexity of the international aspects. On 20th November her Honour Judge Watson directed that the Romanian central authority be invited to attend the next hearing on 4th December. On 4th December, although the Romanian central authority had been notified, no representatives attended but on 2nd December the Romanian Directorate for International Law and Judicial Cooperation wrote saying that the correspondence had been forwarded to the child protection directorate and that a response was awaited.
On 4th December Judge Watson invited the Romanian central authority to write to the local authority by 23rd December informing the local authority of its position concerning the baby and the substance of any representation or applications that they were intending to make to the court. A further invitation was made to the Romanian central authority to attend at the next hearing on 13th January, it being noted that the court may make such an order on that date in the absence of any representation and the court considered that sufficient notice had been given. Judge Watson also ordered that the local authority do have permission to disclose this order and other relevant documents suitably redacted to the Romanian central authority before forwarding it to the Romanian child protection directorate that a warning of the confidentiality of the court proceedings would need to be maintained until further order.
The local authority was ordered to send a copy of the order to the Romanian central authority under cover of a letter explaining that their attendance is requested at the next hearing when final orders may be made in their absence. Judge Watson ordered that the Romanian authorities should not disclose the birth of the baby to the maternal family without the permission of the court. She gave leave to the Romanian central authority to apply to discharge parts of the order.
The matter was restored to her Honour Judge Watson on 13th January. The Romanian central authority had been invited but made no representations and was not in attendance on that day. However, the court read a letter from the Romanian directorate for International Law and Judicial Cooperation and another letter from the director of the Romanian child protection department and noted that the child protection department was content not to inform the maternal family about the birth of the baby and the judicial proceedings whilst A’s best interests were considered.
The child protection department does not consider the adoption of the child as justifiable and that it seeks the return of the child to Romania. Various directions were made and the matter was transferred to Mrs Justice King to be heard in the Royal Courts of Justice in London on 17th January 2014. The Romanian authorities were invited to make representations to Mrs Justice King. It was noted that such attendance is essential if the court is to consider the Romanian authority’s opposition to the local authority’s application for care and placement orders. By paragraph 4 of the order if the Romanian authorities wish to oppose the local authority’s application for care and placement orders they are invited by the court by 16th January to file and serve a document setting out their case in detail whether questions regarding the child’s welfare are subject to determination under the United Kingdom or the Romanian law; however, the courts in England have powers of jurisdiction to determine the questions relating to the child’s welfare and any points they make in opposition to the local authority’s plans for the child, any points they wish to make in support of a plan for the child to be returned to Romania, and the plan they propose for the child’s care including how her medical needs would be met. The Romanian central authority was to be served forthwith.
The letter of 9th January which was before Judge Watson came from the Directorate of International Law and Judicial Cooperation addressed to Coventry City Council, “Please find attached letter of response from the child protection directorate concerning the child. The Romanian child protection considers that the international adoption of a child is not justified as Romanian national law provides specific and limited situations when international adoption can take place. The child protection directorate requests repatriation of the child to Romania where the local child protection agency will be available to make the necessary investigations and to adopt protective measures for the child.”
The directorate also wrote on 16th January again to the local authority, “Further to your message of 13th January, we are sending you attached the answer provided by the child protection directorate dated 15th January. With regard to the question raised by the Coventry County Court on the question of jurisdiction, it is our opinion that Article 13 of the EC council regulations number 2201 of 2003 is applicable, that the Royal Courts of Justice could also take into consideration and apply the provisions of Article 15 of Brussels II (Revised). As to the question of consent and participation by the Romanian representative at the hearing on 17th January our office cannot confirm that at this time.”
The letter that was enclosed came from the Directorate of Child Protection which is dated 15th January; “Further to your request for an opinion regarding the case of A, we believe that we should make the clarifications below. As you are aware from the information provided by the British authorities, the Romanian side has been asked to observe confidentiality about the situation of the child and the identity of the parents. It has been mentioned in our previous correspondence that there is a complete provision for Romanian local authorities to support and assume repatriation of the child considering that she is a Romanian national. However, given that the British authorities have only provided us with extremely brief information about the situation, we believe that their request dated 4th January that a series of documents should be made available by the 16th which should present a proposed plan for the child including the manner in which her medical situation would be handled and any other arguments meant to challenge the decisions made by the local authority that the child is adopted are unrealistic considering that any serious assessment must be based on documents that affect both the social background and they affect the medical condition of the child and the family environment of the natural extended family of the child in order to make a substantiated decision about setting up a measure of special protection. Under the circumstances in relation to the recent request by the British court we wish to mention that our institution upholds its opinion about the Romanian local authorities assuming the responsibility of repatriating this child to Romania and that the specialised documents will be prepared by the general directorate of social assistance for child protection from the country of domicile after the British Social Services provide us with the documents that describe the current situation. Whether a representative of the Romanian Embassy will appear on 17th January, please be advised that we cannot issue an opinion about the designation of the representative who will participate.” Then it was signed off

 

Yes, I have left out of my opening remarks that this case is going to involve Brussels II, but sadly it does. I just didn’t want to put you off reading it at the outset, apologies for my deception.
It gets worse, because then the Romanian authorities began to get cold feet about whether the mother was in fact Romanian, and that debate went on for ages and ages. Their position was that IF the baby was Romanian, then they would want the case and would oppose adoption, but in the absence of documentary proof about the mother’s nationality they wanted no part of it (and they weren’t accepting the process server’s detective work at finding family members and a policeman who confirmed that mother was from a village in Romania)

On 13th March the child protection department wrote the following: “Taking into consideration that child citizenship is still to be clarified, we would like to state that if the court would confirm the child is a Romanian citizen, then the Romanian local authorities from the county where the child’s natural family has residence would issue all the required documentation to return the child to Romania specifying also detailed measures and individual protection plan under which the child’s best interests would be protected. We would like to mention that repatriation procedure as well as the background checks are carried out by the Romanian authorities would be based on the government decision number 1443 of 2004 regarding procedures for the repatriation of unaccompanied children providing the child’s best interests would be protected. If, following the assessment made in relation to the child’s extended family or natural parents, it would be decided that the family re-integration is not an option, then a Romanian competent authority would recommend the child be placed in a foster care based on a court order. The child’s placement would be done by the panel for child protection in the county of residence thought necessary by the court depending on the evidence presented if special protection measures are necessary. Taking into consideration the child’s age, the foster care placement would be the solution to be considered by the Romanian authority as under the current Romanian law, a child under the age of two cannot be placed in a residential institution (orphanage). We would like to emphasise that for the moment the Romanian authorities have been unable to identify the child’s extended family members due to the confidentiality of this case. If the citizenship of the child and the mother are established as Romanian then the Romanian authorities will assume true responsibility for its repatriation be handling the case under Romanian laws.”
That was the final word from the Romanian authorities and the note that sets out the general picture, that letter does not give a timescale as to what would be done, when it would be done and when the child could be placed. There is a lacuna as to what actually would be done in fact and the timescale was not set out.

The Court had to consider the factual matrix to decide whether this baby was habitually resident in England, thus giving the English Court jurisdiction, and decided that she was.

I accept that it is likely that the mother and the little girl are both Romanian. I cannot say that I am one hundred per cent certain but the evidence firmly indicates that likelihood. The mother seemed to speak Romanian as her first language. She talked about Romania and said she was returning to Romania. It seems that we have located her family. I am not making a clear finding of that because all I can do is to look at the evidence before me and the mother is not here. The little girl was born here and the mother wanted her to be adopted here. There was no pressure on her to reach this conclusion. It was her conclusion and she gave her reasons. She said that she had no money to support the child; that her family did not approve of her relationship with the father, that they would disown her and they would not support her and that the father himself was not interested. She herself had concealed the pregnancy from her family and from her friend, Z. The mother has effectively abandoned A to her fate here. She wanted her to be adopted in the United Kingdom, hoping that she would find a good home.
Effectively the mother has left her daughter. Since the birth, A has been here, she has never left this country, she has been in hospital for good reasons after her birth and then when she was ill in July. She only left hospital in September when she was placed with her foster carers and she has not left their care since. She looks on them as her carers, as her family, their home is her home, she knows nothing else, she is only ten months old but she is comfortable, seemingly happy and settled in that environment. If she has a language, it is English. It is not Romanian. No doubt she is familiar with the sound of English. She may now be understanding a lot of things, I know not, but if she has a language it is English. Her culture is that of her carers. The environment in which she lives is that of her carers. She has accessed the United Kingdom’s health system. She moves around her carers’ home area with her carers. She will know their friends and her environment is that of her carers who are British, living somewhere in this country, although I am not sure where; that is where she is and that is her environment. She has had no contact with her mother since 7th June when she was still very, very small. It is clear to me that there is a distinct level of integration for this little girl in the social and family environment in this country with these carers. She has no connection from a practical day to day point of view with Romania. It is clear to me that she is habitually resident here and I make that finding.

In that sense, there is no need for me to consider Article 13 and I have jurisdiction because she is habitually resident here but if I am wrong on that, Article 13 would kick in. Where a child’s habitual residence cannot be established and jurisdiction cannot be determined, the courts of the Member State where the child is present shall have jurisdiction. I am saying that Article 8 applies, this child is habitually resident in this country and by that means I have jurisdiction
The next issue, then, was whether the appropriate venue for decisions to be made was England or Romania, applying article 15 of Brussels II

The Court decided not to transfer the proceedings to Romania (and if you are some sort of Brussels II addict, then the specific paragraphs are 44-50.

The NEXT issue was whether there should be an approach made to the extended family in Romania, and HERE for the first time is a live debate between parties to the proceedings. The Local Authority wanted to respect mother’s clear wishes, the Guardian wanted to explore the extended family so that adoption would only be the outcome if it was the last resort.

This has long been a difficult philosophical issue, and it is difficult to ever find a decision on this point that most people would agree on.

The Court here decide that it IS in the child’s interests for that exploration to be made, and place reliance on ‘nothing else will do’ (although it is quoted as ‘nothing less will do’). That, I suspect, is likely to be the conclusion of such debates in the future, unless there are compelling reasons to the contrary.

It does, as the Local Authority submitted, raise the spectre of mothers not coming to Local Authorities to relinquish where they don’t want their family involved or contacted, but going back to the bad old days with babies being left in wicker baskets outside hospitals or police stations.

I move on to the last issue before me which is should enquiries be made of the maternal family in Romania and that this would entail a breach of the mother’s confidentiality. The local authority have said that there should be no more enquiries, that it would not be in A’s best interests. It would delay the proceedings here and it would delay the making of a care order and a placement order. The guardian is of a different view and says that there should be enquiries because it would be in A’s best interests if those enquiries are made.
It is never an easy point to breach the confidentiality of a mother who has given birth in difficult circumstances and I recognise that she does not want her family to know about the child and she has given her reasons. It has been said by the local authority that if it became known by a mother in similar circumstances, and if she felt that her confidentiality would be broken, she may not seek the assistance of medical help in giving birth; she may seek “a back street abortion” or give birth secretly which would endanger the mother and the child. The reality is that each case depends on its own facts. The matter is within my discretion.
Under the Children Act my task is to consider the child’s best interests and that must be my paramount consideration. It then sets out the checklist required by section 3 as to whether I make an order or relating to the welfare and best interests of the child. Under the Adoption of Children Act 2002, section 1(2) the paramount consideration of the court must be the child’s welfare throughout his or her life and I am referred to the checklist and things that I have to consider all relating to the future welfare of the child. The care plan here is for adoption. Romania, I acknowledge, does not have the same rules for adoption and their position for placing children is different from ours. Here, recently adoption has been described as the last resort for a child when all else fails and that was said in Re B [2013] UKSC 803 or, as Lady Hale said, it is “when nothing less would do”.
It is a last resort at the end of the day because it is the curtailment of a child belonging to his or her natural family. By adoption the child legally becomes a member of another family and is incorporated into that family on an everyday basis. She would become a full member of that family legally, practically, and emotionally. It is a change of identity of lifestyle, environment, a change of everything in a child’s life. It is a cutting off for the child from her background or the knowledge of the family and the environment in which she came from and it is a cutting off in law as well. The President in the recent case of Re B indicated that it should only be done on very clear evidence and there must be proper evidence both from the local authority and from the guardian and the evidence must address all issues and must contain an analysis of the arguments for and against each option. There must be clear evidence and proper information or as much as can be garnered. All options must be considered before a care plan for adoption can be accepted, with a placement order being made or an adoption order being made.
The court has a duty to ensure that full and proper enquiries have been made of the child’s family. Herein lies the problem, the tension between the little girl’s interests and rights and those of the mother. The mother is not present because she cannot be found and she is not here to put her view and her voice cannot be heard but she made her wishes and intentions for her daughter clear. She wanted the little girl to be adopted and she wanted full confidentiality and had concealed the pregnancy. It is not known how the maternal family would react or what the consequences might be either within the family or to the mother if it became known by the family that the mother had given birth to this little girl and had effectively abandoned her in a foreign land. That we do not know. All we have is the indications by the mother that the family was disapproving of her relationship with the father and she felt that they would not support her in keeping the baby, that the father was not interested. We do not know the consequences that might arise if the family knew about it. All we know is that she wanted confidentiality for her own reasons.
Against that, the little girl has her rights and rights that should be considered before she is adopted here by her current carers. Enquiries should be made to see if she can be returned to her family, her culture, her birth environment, the country of her origins and those are her rights. Both sides, the mother and the daughter, can claim their right to Article 8 of the Human Rights which is that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of respect except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, and economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words, in a case like this, there is to be respect for the individual’s private and family life and that the court and others should not interfere with that right.
I must also remember that if the information is correct, there are other members of her family, the grandmother, and there may be a grandfather, the half-siblings, and the father himself would have rights to know about this child, to have a voice in that child’s upbringing, if only to say, “We are not interested,” but they have rights.
It is established law that if there are conflicting interests between a child and adults that after careful consideration of all the interests and consequences of any order, and the child’s interests are paramount and they prevail over others.
On the one hand, we have the mother’s position, as she set out and her wishes and her intentions for her daughter. On the other hand, we have the little girl’s interests. Very little is known about her mother or her maternal family or their circumstances and even less about the father who has not been identified. The guardian, on behalf of A, says that it is important to carry out further enquiries and investigations to see if there is a long-term family member available in Romania, if there is a possibility of direct or indirect contact in the future if she is to remain here and to be adopted; and, if she is to be adopted, more information as to her background would be useful as to her family, their background. Such information may be of value to her in the future to know who she is, to know her background and to give her some sense of identity as to where she came from. Her guardian says that eventually if she is to be adopted, she will grow up to know that she has been adopted but she needs to know before she is adopted that everything was done that should have been done before a decision is made and that will be of value to her in her adult life. The guardian accepts that if there are to be further enquiries, there must be no delay.
There was a window of opportunity in February, it has narrowed in the last few weeks and there is very little time left if those enquiries are to be made. If I allow enquiries to be made, they should be strictly time restricted. The local authority say that there is enough information for this court to proceed, that this child needs to be settled quickly, decisions should be made and there should be no more delay given that the mother’s wishes are clear.
I accept, if there is to be further investigation, that delay is an issue. Fortunately she is well placed. If she is to be adopted there will be no move and therefore she herself from a day to day point of view will remain settled until more is known and further decisions can be made but against that, the stress and strain on the carers must be huge. They love her and are committed to her and want to commit to her long term. They need certainty now or very soon from now. It is not fair on them to make them wait for ever. I bear that very much in mind because they are doing a good job and the little girl is benefiting from their care. Anxiety within the home never is good. It will or potentially could impact upon their care and that is what worries me.
I have thought about this and it is not an easy issue but I have come to a decision. I have come to the view that it would be in A’s best interests to make further enquiries in Romania about her family and for the reasons set out by the guardian but those enquiries should be strictly time limited. There should be a strict timetable as to when they should be concluded. If they are not concluded in the timescale because it has not been possible, then decisions will have to be made in this court to conclude these proceedings. I think there should be one last attempt to make further enquiries of the mother’s family and of the father’s if he can be identified and of the provision and systems for child care in the Romanian locality.

 

As I said at the outset, this was not strictly a relinquish case, because mother didn’t sign the forms, but it is on any reading a case where that was her intent, and the High Court here apply “nothing else will do” as a rationale for not making the order, delaying the proceedings and making further enquiries about family members.

adoption of an 18 year old

 

Re B (2014)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1284.html

 

The Court were faced with an application by a couple to adopt a boy who was, by the time of judgment 18. The application was issued when he was 17, so the Court had jurisdiction at the time of the application (it took nearly a year to resolve)

There were two reasons why it took so long to resolve.

 

1. The immigration status of B himself.  And in particular the Home Office’s “deafening silence” in relation to any attempts to engage them

 

2. The need for an age determination of B, since some of the documentation suggested that he might actually be 26, which would have taken him outside of the Court’s jurisdiction to make an adoption order.

 

  • a 30-page letter sent to the Home Office dated 12th May 2011. This letter set out a detailed account of the background circumstances and effectively asked for a reconsideration of the previous refusal in August 2010. It also asked for leave for B to remain here on compassionate grounds, as set out in some detail in that letter.

 

 

 

 

  • That letter was sent to the Home Office on 12th May 2011. Here we are nearly three years later, and despite chasing letters being sent to the Home Office by Mr. O on 17th November 2011, 29th November 2011, 16th January 2012, 20th February 2012, 11th June 2012, 5th November 2012 and 23rd August 2013, not one response or acknowledgement has been received from the Home Office regarding that application.

 

 

 

 

  • This morning I was shown a letter from Capita (who appear to be instructed on behalf of the Home Office) to O Solicitors dated 28th March 2014. It says as follows:

 

 

 

“Thank you for your request dated 23rd May 2011 asking for reconsideration of the decision to refuse your client’s application for leave to remain. I apologise for the delay in responding to your client’s letter. We are in the process of reviewing your client’s request for reconsideration and would be grateful if your client could complete the attached form to provide us with an update to your client’s current circumstances. This information will assist in assessing whether your client’s case is eligible for reconsideration.”

A Capita form is attached which is about five or six pages long. The letter continues:

 

“Please return the form in the prepaid envelope within 14 days from the date of this letter. If we do not receive the returned form within this timeframe, your client’s reconsideration request will be assessed on the information provided at the time of the request or in which it is held on Home Office records.”

It is then signed, “Yours faithfully, Capita Business Services”. The letter is not signed by any individual. It is a pro forma letter. That is the updated position regarding the immigration application.

 

 

[I am REALLY looking forward to working for Capita, once care proceedings are privatised]

 

  • Turning back to the procedural history, the matter was listed on 2nd October, again before District Judge Simmonds. He records in order that it appeared to the court that three matters were outstanding, one of which is the reply from the Home Office. Paragraph 1 of that order, “The court shall forthwith chase the Home Office for a response to whether they wish to intervene and for them to send this to the court forthwith”. In paragraph 2 it states “The court shall forward to the parties any response from the Home Office on receipt”. The matter was listed again for final hearing on 28th October 2013.

 

 

 

 

  • In the intervening period between 2nd October and the end of October, enquiries were made by the court to see whether there had been any response from the Home Office but none had been received. On 25th October, the court advised the parties the hearing on 28th October was vacated due to an issue with the Home Office.

 

 

 

 

  • On 25th October an order made by District Judge Simmonds states as follows:

 

 

 

“Upon the adoption office having contact with the Home Office, as no reply had been received from the court’s enquiries, and upon the Home Office confirming that B has no right to stay in the United Kingdom and has his own case worker and they are awaiting information from the case worker before replying. And upon the court adjourning the hearing for this information to be provided.”

 

 

  • The court directed the 28th October final hearing was vacated and the time for the Home Office to provide a response as to whether they wished to intervene within the proceedings was extended to 22nd November. The ordered provided that in the event the Home Office did not reply by 22nd November, the court shall proceed with the application on the basis that they do not wish to intervene. The matter was listed again before District Judge Simmonds on 29th November.

 

 

 

 

  • On 28th November the court telephoned B’s solicitor to advise that some documents had been received from the Home Office. This meant the final hearing that was then listed on 29th November 2013 may not be effective. At the hearing on 29th November a statement with exhibits from Mr. S of the Home Office was before the court and was shown to the parties. Mr S is a Higher Executive Officer with responsibility for the custody of Home Office records. The statement raised issues regarding the date of birth for B together with issues regarding different birth certificates and their authenticity. As a result of that material being put before District Judge Simmonds, he transferred the matter to the High Court and it was listed for hearing before me on 16th January.

 

 

 

 

  • Pending that hearing District Judge Simmonds made a number of directions. He directed B to file and serve a statement in reply to the statement from the Home Office by 10th January 2014. He also directed:

 

 

“This order shall be forwarded to the Home Office and they are invited to attend the hearing at para.1, namely 16th January 2014, to assist the court and to make any application to intervene in the proceedings on or before that date.”

 

 

  • Immediately following that hearing on 29th November B’s solicitor advised the Home Office of the hearing and forwarded them a copy of the order advising them of the date of the hearing on 16th January. On checking with the court, subsequently it was found that the court, too, had sent a copy of the order of 29th November to the Home Office. No response was received either by B’s solicitor or by the court from the Home Office.

 

 

 

 

  • The matter first came before me on 16th January. Having considered the papers, in particular B’s witness statement of 9th January, I made the following recitals:

 

 

“The Home Office, having failed to indicate whether it wished to intervene in these adoption proceedings by today’s date as ordered by District Judge Simmonds on 29th November, and upon the court indicating that it intends to make a declaration in relation to B’s age, and upon the court making a court request for information to the Home Office as specified in the form EX660 of today’s date, and upon the court inviting B’s current immigration solicitors to provide the solicitors for the guardian with copies of the documents and his immigration file by 23rd January…”

 

I made an order that included the following:

 

“1. The solicitor for the guardian do forthwith serve a copy of this order and a copy of B’s witness statement dated 9th January (along with its exhibits) on the Secretary of State for the Home Department via the Home Office liaison team at HMCTS.”

2. That the Home Office do notify the guardian’s solicitors by 14th February whether it intends to apply to intervene in these adoption proceedings, and if it does, to issue such an application by 4 p.m. on 17th February.

3. In the event that such an application is issued, there is to be a directions hearing listed before me on 25th February to consider any directions that need to be made as a result of such an application with a time estimate of 30 minutes.”

 

 

  • I made provision that if the application to intervene was not made, the hearing on 25 February could be vacated. I listed the matter for a substantive hearing on 6th March with a time estimate of one day to consider (and this was recorded on the face of the order) (1) whether to make a declaration in relation to B’s age, and (2) to decide whether to make an adoption order in relation to B. I made directions for the filing of further evidence, both by the applicants and by B, and I made provision, if the Guardian was so advised, to file any further report. I made directions for the filing of skeleton arguments.

 

 

 

 

  • That order was sent to the Home Office by B’s solicitor. The solicitor phoned the Home Office liaison team on 20th January to check what the correct address was. They were told that the information, the EX660 and the order should only be served by fax. They sent an unsealed copy of the order I had made on 16th January by fax to the Home Office on 20th January. On 26th January they sent the sealed copy of the order by fax to the Home Office. They also sent the EX660 to the Home Office so they were aware of what was required.

 

 

 

 

  • B’s solicitors corresponded with the court on two occasions to see whether the court had heard anything from the Home Office. They vacated the hearing on 6th March because details had not been obtained from the Home Office in response to the EX660 and re-listed the matter for today. They informed the Home Office of this revised timetable. They finally contacted the Home Office on 26th March. They faxed the Home Office a letter asking if they were going to respond to the EX660 or to any of the directions that had been made by the court. No response has been received from the Home Office.

 

 

 

 

  • It is quite clear the Home Office has been given every opportunity to participate and engage in these proceedings, not only through the efforts of the court but also by the solicitor for B.

 

 

 

 

  • In accordance with my directions made on 16th January, both B and the applicants have prepared further statements that have been filed and I have read them.

 

 

 

 

  • The only updated information is the letter referred to above from Capita on behalf of the Home Office asking for a form to be completed in relation to B’s application for reconsideration of the refusal of his application for leave to remain. As I have indicated, that is against a background (as far as I am able to understand because the Home Office has not responded to the EX660) that B arrived here in early 2008 on what appears to have been a six month visa which was not renewed. Mr. and Mrs A sought to regularise his position by their application in April 2010. That was acknowledged on 17th May 2010 when there was a request to the former immigration solicitors by the Home Office for a form and a method of entry questionnaire to be completed. This was completed and returned.

 

 

 

 

  • As I have indicated, that application was determined in August 2010. The only information I have in relation to that is the way the reasons for refusal are summarised in the letter from the immigration solicitors to the UKBA on 12th May 2011. At p.2 of that letter they set out the basis of their refusal, effectively rejecting that any Article 8 rights had been established in favour of B to enable him to stay here.

 

 

 

 

  • It is of note on the information I have about the process that took place in 2010, it appears at no stage was any issue raised in relation to B’s age. New solicitors were instructed in early 2011 and they made the application in May 2011. Despite the chasing letters listed above and nearly three years having passed since that application was made, no response was received until the letter from Capita on behalf of the Home Office on 28th March. It appears to be accepted by the Home Office, that the application in May 2011 was for a reconsideration of the refusal of B’s leave to be able to remain here.

 

 

Against that background, it is not surprising that the Court eventually decided that they were unlikely to get any joy out of the Home Office  (in A J Herbert’s lovely phrase the parties had been engaged in “frequent although one-sided correspondence”)  and turned their attention to a forensic exercise of whether blood could be extracted from a stone, as that was more likely to be productive…

 

 

  • I am quite satisfied this application is not a device, by any stretch of the imagination, to gain a right of abode. Mr. and Mrs. A have responsibly taken all necessary steps at each stage to seek to regularise the position regarding their care of B. They fully cooperated with the private fostering assessment that was prompted by their application regarding B’s immigration position. They then promptly and responsibly applied for a residence order, which was made by the court. As I have said, they have subsequently assisted in supporting applications to regularise B’s immigration position. They could not have done any more.

 

 

 

 

  • I am satisfied the applicants, the solicitor for B and the court could not have done more to seek to engage the Home Office in these proceedings; but they simply have not responded. I am quite clear this application cannot be delayed any further. I am, of course, acutely aware that if the court does go on to grant an adoption order, it confers nationality, but I can see no more the court could have done to seek to engage the Home Office in these proceedings.

 

 

 

 

  • It is of particular concern there appears to have been a complete failure to comply with what, in my experience, has always been an effective procedure for this court to obtain relevant immigration information, namely through the EX660 procedure. It is normally expected that that request will be responded to within 28 days. My recent experience in other cases is that the response is normally well within that time frame. In this case the EX660 request is now 63 days old. I sincerely hope this is an isolated occasion where there has been non-compliance with the request made by the court, but I will take steps to ensure that the circumstances of this case are drawn to the attention of the Home Office.

 

 

 

 

  • I am quite clear this application, in the particular circumstances of this case, should proceed and there should be no further delay.

 

 

The age issue

 

  • The next issue the court has to consider is B’s age. One of the matters that raised by the statement from Mr. S is B’s date of birth. It is raised in an unhelpful way because the statement has been provided and the issue raised, but the Home Office have been unwilling to participate in the case to assist the court further.

 

 

 

 

  • What is said or implied by the statement from Mr. S is that when B was brought to this jurisdiction in January 2008, it was on a passport that gave a different date of birth, namely 17th September 1987. This would make B 20 years of age when he arrived in 2008 and would make him 26 ½ years of age now.

 

 

 

 

  • With the application made by Mr. and Mrs. A, they submitted birth certificates setting out his date of birth as 17th September 1995. As far as I can see in all steps they have taken in relation to B, not only in relation to his immigration position but in all other aspects of his life, they have operated on the basis that this is his date of birth. That would have made B about 12 ½ years of age when he came to this jurisdiction in early 2008.

 

 

 

 

  • I consider it important the court should determine this issue with. It has to for two reasons.

 

 

 

 

  • Firstly, to determine whether the court has jurisdiction to be able to consider this application because, by virtue of s.49(4) ACA 2002 an application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.

 

 

 

 

  • The application was made on 1st June 2013. If B’s date of birth is 17th September 1987, he was clearly over 18 at that time. However, if his date of birth was 17th September 1995, he was under 18 at the time when the application was issued and so the court has jurisdiction. In addition, the court would only have power to make an adoption order pursuant to s.47(9) in relation to a person who has not attained the age of 19 years. Clearly, that would be the position if B’s date of birth was in 1995, but it would not if his date of birth was in 1987.

 

 

 

 

  • Secondly, I consider it an important and integral aspect of B’s welfare for the uncertainty that has been raised in relation to his age to be resolved.

 

 

 

It is established law that the Court can make a factual determination following their own assessment of the age of a young person (that chiefly flows from the case law about unaccompanied asylum seekers, where they are entitled to certain services if they are under 18 and thus from time to time the Local Authority is placed in a position of deciding whether someone who appears to be much older is really a child). The Court took a variety of factors into account

 

  • Having considered all the evidence from these different sources I am satisfied, on the balance of probabilities, that B’s date of birth was 17th September 1995 and, as a result, he was 17 years of age when this application was issued and this court consequently has jurisdiction.

 

 

 

 

  • On the information that I have seen it is inconceivable that B would have been able to live a life if he was eight years older than he is. This is particularly bearing in mind that he has been attending school and college, and been exposed to the various agencies, particularly the local authority, through the reports that have been prepared in relation to B’s care and placement with Mr. and Mrs. A, without somebody questioning or raising such a significant issue regarding his age.

 

 

 

 

  • Whilst I acknowledge the question of growth in height is not determinative, in the context of this case it is an important part of the evidential picture. Particularly when looking at the alternative age which during the relevant period he would have been between 22 and 25. It is highly unlikely, in my judgment, that there would have been a growth of 20cm in height between those ages, and it is much more likely that that growth in height would have taken place between the ages of 15 and 17.

 

 

 

 

  • I have no reason to doubt the account give by Mr and Mrs A regarding B’s age. They have boys of their own, some of whom are young adults. They have had his care for over five years and have seen nothing to suggest he is 7 years older than they have understood he is.

 

 

 

 

  • In reaching my conclusion, I have also taken into account that it is likely that the person who brought B over to this jurisdiction from Nigeria probably had an incentive for B to be an adult rather than a minor. This is due to the circumstances in which he was brought here and the circumstances that he has described during the period of time that he was living with uncle Femi between early 2008 and early 2009.

 

 

 

 

  • For those reasons I will make a declaration in relation to B’s age, being satisfied as I am on the balance of probabilities that he was born on 17 September 1995.

 

 

 

The Court then went on to consider the adoption application itself, having satisfied itself that the Court had jurisdiction to make the order.  Those reasons are not terribly interesting or important in themselves, but it is the second example of the High Court treating certain types of adoption as being different in character to the non-consensual or forced adoption that are tied up with the “nothing else will do” and Re B-S principles  (the first being the step-parent adoption case). That may be of interest in the as yet unanswered question about whether Re B-S applies to adoptions where the mother has relinquished the child.

 

The Court did, of course, make the order

 

Having carefully considered the matters in the welfare checklist I am satisfied B’s lifelong welfare need, which are the court’s paramount consideration, can only be met by the security and stability that an adoption order will bring. Only an adoption order will secure lifelong his relationship with Mr. and Mrs. A.

Step-parent adoption – telling the birth father

 

The High Court have just considered this issue in  A and B v P Council 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1128.html

This is a step-parent adoption, i.e the child’s step-father seeking to become the child’s legal father, which would have the effect of severing the birth father’s legal relationship with the child. There are a raft of nationalities involved here, and the birth father’s name is on the birth certificate. The birth was recorded in Thailand, and thus it was not clear whether this gave him “parental responsibility”  [The High Court had initially decided to proceed on the assumption that he DID have PR]

The mother and step-father say that they do not have an address for the father, and he has had no contact with the child, who is now 9, for many years – in fact since just after his birth.

The issue for the Court was whether the adoption could go ahead without father being served with notice.

 

The Relevant Legal Framework

 

 

  • There is a measure of agreement between the parties, the Local Authority and Cafcass Legal regarding the relevant legal framework for this application.

 

 

 

 

  • A parent with parental responsibility is an automatic party to the proceedings under rule 14.1 Family Procedure Rules 2010 (FPR 2010).

 

 

 

 

  • A parent who does not have parental responsibility may be given notice of the proceedings and that person may apply to the court for party status (rule 14.3 FPR 2010).

 

 

 

  • It is agreed that if the father did hold parental responsibility under Thai law, that is not recognised in England and Wales for the purposes of English adoption law.

 

 

 

 

  • This is due to the operation of Article 4 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996) (hereafter referred to as the 1996 Convention).

 

 

 

 

  • Under Article 16 of the 1996 Convention parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. This is even if the State of habitual residence is a non-contracting State (Article 20).

 

 

 

 

  • Under Article 17 the exercise of parental responsibility is governed by the law of the State of the child’s habitual residence and if the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence.

 

 

 

 

  • However, when considering the scope of the 1996 Convention, Article 4 makes clear it does not apply to the establishment or contesting of a parent-child relationship, decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption or the name or forenames of the child. The combination of the Explanatory Report on the 1996 Hague Convention by Paul Lagarde (in particular paragraph 28), the revised draft practical handbook on the 1996 Convention (May 2011) (in particular paragraph 3.37) and the Practice Guide on the 1996 Convention published by the Ministry of Justice (February 2013) (in particular page 6) make clear Article 4 is to be interpreted widely and includes all aspects of the adoption process, including the placement of children for adoption.

 

 

 

 

  • It is therefore agreed by the parties that even if the father did hold parental responsibility pursuant to the operation of Article 16, by operation of Article 4 he would not be treated as a parent within the context of s 52(6) ACA 2002. Within that context the father is not treated as a father who holds parental responsibility unless he has acquired it under sections 2 or 4 Children Act 1989 (CA 1989), which this father did not.

 

 

 

 

  • The consequence is that the father in this case does not hold parental responsibility for M within the meaning of the ACA 2002, his consent to the adoption under s 47(2) ACA 2002 is not necessary and would not be required to be dispensed with under s 52 ACA 2002. He is therefore not an automatic party to the adoption application under rule 14.1 FPR 2010.

 

 

 

 

  • However, notwithstanding that an unmarried father with ‘foreign parental responsibility’ is not a father with parental responsibility for the purposes of English adoption law the provisions of rule 14.4 FPR 2010 provide as follows:

 

 

 

Notice of proceedings to person with foreign parental responsibility

14.4

(1) This rule applies where a child is subject to proceedings to which this Part applies

and –

(a) a parent of the child holds or is believed to hold parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom; and

(b) that parent is not otherwise required to be joined as a respondent under rule 14.3.

(2) The applicant shall give notice of the proceedings to any parent to whom the applicant believes paragraph (1) applies in any case in which a person who was a parent with parental responsibility under the 1989 Act would be a respondent to the proceedings in accordance with rule 14.3.

(3) The applicant and every respondent to the proceedings shall provide such details as they possess as to the identity and whereabouts of any parent they believe to hold parental responsibility for the child in accordance with paragraph (1) to the court officer, upon making, or responding to the application as appropriate.

(4) Where the existence of such a parent only becomes apparent to a party at a later date during the proceedings, that party must notify the court officer of those details at the earliest opportunity.

(5) Where a parent to whom paragraph (1) applies receives notice of proceedings, that parent may apply to the court to be joined as a party using the Part 18 procedure.

With that in mind the Court went on to consider the issue of father’s PR

  • I am satisfied the mother and step-father do not believe the father has parental responsibility under Thai law and there is a rational foundation for their belief for the reasons set out in the previous paragraphs. That belief is derived from a number of different sources and there is no suggestion that the mother and step father have done other than comply with all the relevant authorities both in Thailand and here.

 

 

  • In the light of that I do not consider the mandatory requirement for notice of these proceedings to the father applies as, in accordance the provisions of rule 14.4 (1) and (2) the applicant (in this case the step-father) does not believe the father holds ‘parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom’.

 

 

  • Even if the father does not hold foreign parental responsibility the court is still required to consider whether the father should be given notice of the application.

 

 

The High Court then looked at the case law about giving fathers notice of adoption proceedings (or not giving them notice, as the case may be). Most of these arise from ‘relinquished’ babies, where the mother seeks to give the child up for adoption but does not want the father to be informed (often there’s a short-lived relationship, or an abusive one, or the pregnancy has been concealed from the mother’s own family).  There are some gray areas at present as to whether these are thus ‘consensual’ adoptions (and Re B, B-S don’t apply) or whether because father hasn’t consented they are in reality ‘non-consensual adoptions” to which Re B and Re B-S  (the Court having to be satisfied that ‘nothing else will do’) apply.

 

[The same gray area potentially arises here, since the father was not consenting, but the mother was. The High Court don’t actually resolve that gray area – not sure whether that lets the conclusion be drawn that the High Court, given they don’t use ‘nothing else will do’ wording  means that they consider a case of THIS kind to be consensual adoption. It may not be safe to draw that conclusion, since the last paragraph indicates that having dealt with the issue of service on father not being required, the Court would go on to consider the MERITS of the application on another occasion.   Frankly, if “nothing else will do” applies to step-parent adoptions, it is hard to see how they would ever be granted.  The child is in the placement, there are other legal routes to secure parental responsibility for the step-father, how could one ever consider that ‘nothing else than step-parent adoption would do’?)

 

 

  • it has long been recognised that in applications for adoption the position of the natural father who did not have parental responsibility had to be considered and a decision taken in each case whether, or not, to give him notice of the proceedings. Whether to do so should be considered on the facts of each case.

 

 

 

 

  • Re H (a child)(adoption: disclosure), Re G(a child)(adoption: disclosure) [2001] 1 FCR 726 set out that as a matter of general practice, directions should be given to inform natural fathers of such proceedings unless for good reasons the court decided it was not appropriate to do so. The issue of whether or not the father had a right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as set out in Part 1 of Schedule 1 of the Human Rights Act 1998 was important to establish. If he did then generally Article 6(1) of the Convention is engaged and there would need to be strong countervailing factors to outweigh the father’s Article 6 rights in favour of the mother’s right to private family life. Such countervailing factors may include serious domestic violence that placed the mother at serious physical risk. As the then President, Dame Elizabeth Butler Sloss, observed in Re H (ibid) at para 48 ‘There may well be other situations in which a father should not be informed of the proceedings and my examples are, of course, not exhaustive’. If the father does not have any Article 8 rights the provisions of Article 6 are not engaged and notice does not need to be given, unless there is a real possibility that he might make an application under the CA 1989 which the court ought to entertain.

 

 

 

 

  • In the cases where the court is being asked to exercise its power to grant exception from the rules which require a father to be given notice the previous cases establish this power should only to be exercised in ‘highly exceptional circumstances’ (per Thorpe LJ Re AB (Care Proceedings: Service on Husband Ignorant of Child’s Existence) [2003] EWCA Civ 1842 para 3) or a ‘high degree of exceptionality is required’ (per Longmore LJ M v F [2011] EWCA Civ 273 para 25). This will depend on the court’s assessment of the risk of future harm. In M v F (ibid) para 3 Thorpe LJ stated ‘When evaluating the risk of future harm there can be no minimum requirement. The court’s first task is to identify the nature and extent of the harm in contemplation. The greater the harm the smaller need be the risk. Obviously, the risk of death may be very small, whereas the risk of turbulence in family relationships would need to be much higher.’ In assessing the likelihood of harm arising from notice of the proceedings the test to be applied is the test in Re H (minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 namely ‘in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case’.

 

 

 

 

  • There may, in reality, be little difference in the principles between these two strands of cases as a critical starting point is to establish whether or not the father has any right to family life pursuant to Article 8. It is agreed this is a question of fact and there are a number of matters for the court to consider. It has been said that the threshold for establishing family life has been set at a fairly modest level.

 

Applying the broad principles to the case, the Court heard representations about allegations of previous violence from the birth father to the mother

 

 

  • I have very carefully considered the important competing considerations in this case and I am very mindful of the general practice to inform natural fathers of applications such as this which fundamentally affect the status of a child. I have considered this aspect of the case in the context of rule 14.4 and, for the purposes of this analysis assumed this father does have foreign parental responsibility. So there is a mandatory requirement under the rules for him to be given notice of the proceedings.

 

 

 

 

  • I am considering this issue in the context of my finding that the father, for the reasons I have already explained, does not have any existing Article 8 rights. He is someone who has not sought to maintain his ties with M.

 

 

 

 

  • The wish of the mother and step-father for confidentiality is, in my judgment, an exceptional circumstance, on the facts of this case, justifying the court exercising its power to grant exception from the rules requiring the father to be given notice. The evidence based fears expressed by the mother regarding the father’s behaviour is founded on the father’s previous violent behaviour to her, M and her wider family which is supported by corroborative evidence. In my judgment there is a real possibility that if the father is informed of this application he could physically harm or threaten the mother or the wider maternal family. It is a possibility that cannot be ignored having regard to the extent of the father’s alleged violent behaviour towards the mother and her wider family in the past, in the context where the maternal family remain in the same home which is known to the father. On the particular facts of this case the balance, in my judgment, comes down in favour of the father not being notified about these proceedings, even if he could be located.

 

 

I am satisfied the Local Authority in this case does not need to take any further steps regarding the father for the reasons outlined above.

What the Court want from experts, and other adventures in judicial ass-whupping

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

  1. Dr Rylance’s report
  1. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.
  1. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.
  1. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4th and 5th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.
  1. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.
  1. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.
  1. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.
  1. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.
  1. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

  1. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.
  1. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.
  1. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”
  1. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.
  1. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.
  1. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.
  1. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.
  1. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.
  1. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.
  1. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

  1. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.
  1. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”
  1. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.
  1. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”
  1. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”
  1. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.
  1. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.
  1. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.
  1. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

  1. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.
  1. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.
  1. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

  1. 94.   Case handling by the local authority
  1. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.
  1. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.
  1. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.
  1. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
  1. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.
  1. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.
  1. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”
  1. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”
  1. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.
  1. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.
  1. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.