Category Archives: adoption

Joe and the Juice…

Posted on May 29, 2025 by suesspiciousminds

Oh boy. Buckle up, buckaroos.

Not sure there’s all that much valuable law in this one – unless you happen to have a case with the man in question, but there’s a LOT to unpack.

https://www.bailii.org/ew/cases/EWFC/HCJ/2025/130.html

CA & Ors, Re (Children of Unregulated Sperm Donor) [2025] EWFC 130 (16 April 2025)

Now, you were already saying to yourself – why has Suess opened this blog post with a photo of tomato passata? And now you’re saying – well, I’ve read the title of the case and it makes EVEN LESS sense now.

Stick with me.

High Court case, the LA seeking Care and Placement Orders in relation to two children, CB and CX, and there were linked private law proceedings in relation to CA. What all three had in common was that their biological father is a Mr Robert Albon. (weird to name him, you’re thinking…).

Mr Albon is for want of a better term, a professional donator of sperm. He has fathered on his account 180 children. He opposed the making of the Care and Placement orders for CB and CX – the mother did not oppose but did not consent.

In analysing the right outcome for the children, the Court had to look at Mr Albon’s history and thus his parenting capacity. Mr Albon uses the pseudonym, Joe Donor. If you’ve just had a shudder down your back as you realise exactly why this blog post has the title it does, I’m sorry.


  1. Robert Albon is 54. He was born in the United States of America and was adopted with his twin brother at the age of three. His adoptive parents later conceived and gave birth to a boy themselves whom Mr Albon feels was favoured by them. The family lived around the world because of his adoptive father’s work. Mr Albon’s twin died in a motorcycle accident as a teenager. His adoptive father died a few years ago. Mr Albon has no contact with his surviving brother or his mother. He is fluent in Japanese and Chinese, speaks other languages, and has worked as a translator. He married a Japanese woman and they had two children who are now in their 20’s. During the marriage Mr Albon had an affair with a Chinese woman with whom he had two children. In or about 2013, he started acting as an unregulated sperm donor. He told the Court that he wanted to have more children whereas his wife did not. He enjoyed having brought further children into the world with the Chinese woman but not the complications that arose from having done that. Sperm donation allowed him to produce more children without complications.

Without complications…

Mr Albon seems to be quite the international jetsetter.

  1. In 2017, Mr Albon was living in the US with his wife. The children of his marriage were their daughter, then aged 21, who he says had become estranged from the rest of the family by 2017, and their son, then aged 17. One day, when his wife was out of the house, Mr Albon drove to the airport and caught a flight to Argentina. He contacted his wife a few days later to tell her that he had left. He lived in Argentina for about three years. He told the Court that there were a number of reasons why he left, including that he and his then wife wanted different things in life. He said that he had chosen Argentina because he spoke Spanish, and there was a low cost of living there. He says that he sent about US$1000 per month to his wife but also revealed that the family home was repossessed and that an order for alimony payments to his wife was made against him. He complained that the order was manifestly too high due to an error made by his ex-wife when she completed the application. However, the order remains in force. They divorced in 2019 but he says that he speaks to her a few times each year. He says that he is on good terms with his ex-wife but produced no evidence to corroborate that assertion. They both remain estranged from their daughter. He met his son when he returned to the US to deal with the car he had left at the airport but now has no contact with him. He has no contact with the Chinese woman or their two children which he puts down to having lost their contact details and difficulties finding and communicating with people in China.
  2. Mr Albon had carried on sperm donor services in the US before he left in 2017. One mother, from Wisconsin, pursued him for child maintenance and secured a court order. He complains that she harassed his daughter and that he applied for a restraining order against the woman to protect his daughter. He accepts that the maintenance order remains in force and that a warrant was issued for his arrest for breach of the order. The warrant remains in force. He is confident that he would be able to set aside the order if he returned to the US but he accepted that, between that order and the alimony owing to his wife, he is in debt for tens of thousands of dollars.
  3. Mr Albon continued to act as an unregulated sperm donor in Argentina. Whilst there he made a trip to Australia visiting fifteen or so women for the purpose of donating sperm to them. His visit was reported upon in a news documentary programme called “60 Minutes Australia” which I have viewed as well as reading a Media Watch report, critical of aspects of the programme. He also made trips to other South American countries. He claims to have fathered multiple children in the US, South America, and Australia. At some point Mr Albon also started a sperm donor Facebook page in Africa. It is wholly unclear how many children he may have fathered there. The co-administrator of the page has reportedly used the expression “bleach Africa” which Mr Albon told this Court was a joke.
  4. Mr Albon says that he left Argentina because of a change in government there, the effects of the pandemic, and because he wanted to travel to The Netherlands and Germany. He came first to the UK but was prevented from leaving for Germany or The Netherlands as planned due to the second wave of restrictions due to the Covid 19 pandemic. He arrived in September 2020 and has remained here since then. On 5 October 2020, he appeared on television on This Morning, claiming to have fathered 150 children “by personal insemination” and was interviewed by Phillip Schofield and Holly Willoughby. He was granted a visitor visa to the UK from 29 September 2020 to 30 March 2021 and initially lived in a hotel in Essex. His visa was extended to 3 November 2021 due to the pandemic. He then applied for permanent leave to remain.

This is not the first set of English family law proceedings Mr Albon has become involved with.

  1. On or before 6 November 2020, Mr Albon was contacted by a woman, B, about his becoming a sperm donor to assist her to conceive. The circumstances of the conception and birth of their child are set out in the published judgment of HHJ Furness KC sitting in the Family Court at Cardiff, A v B and C (above), in which the child is referred to as D. I have seen other papers from that case. HHJ Furness KC found that D was conceived by artificial insemination performed on 8 November 2020. At the time, B was in a same-sex relationship with C whom she later married. D was born in July 2021.
  2. HHJ Furness KC found that Mr Albon promoted his sperm donor service, both online and during his interview on This Morning, as being provided with no expectation of any paternal involvement with the child. Specifically, he had said, “Moms I help can choose no contact and I respect that.” The Judge found that B and C did not want Mr Albon to be involved in D’s life and that when Mr Albon contacted B about a fortnight after the birth asking to see D, she replied that she and C had already said to him that they did not want any contact. On 11 August 2021, there was what B and C thought would be a one-off meeting at which Mr Albon met D and photographs were taken. On 16 August 2021, Mr Albon applied for a declaration of parentage, an order granting him parental responsibility, and a CAO giving him contact with D. Later he applied to the court to change D’s name. On the day that B and C received the court papers there was a telephone conversation between them and Mr Albon which he recorded. Two years of litigation ensued before the Court dismissed Mr Albon’s applications. The Judge found that “the motivation for [Mr Albon] commencing the proceedings was principally to support his immigration position.” The Judge recorded that the mother, B, had a history of mental health problems made worse by the litigation. The Judge found that Mr Albon was dismissive of C’s role in D’s life, suggesting at one point that she could be called “aunty” by D. The Judge found that a CAO giving Mr Albon direct contact with D would lead to conflict and instability and be detrimental to D’s welfare. As agreed by B and C, the Judge ordered that indirect contact should take place by way of an annual updating letter from B and C to Mr Albon and an annual card or letter from Mr Albon which would be retained for D “for when he was of an age to understand from whom the document derived”.
  3. HHJ Furness KC handed down a finding of fact judgment in July 2023 and a final welfare judgment in November 2023. He found that Mr Albon:
  4. “… is a man who seeks to control, women and children appear to be almost a commodity to him as he sets about increasing the number of his children around the globe.”
  5. Mr Albon sought to appeal all the decisions of HHJ Furness KC. He was a litigant in person. He put forward 47 grounds of appeal. Peter Jackson LJ refused permission on all grounds on 30 January 2024. Mr Albon then sought to apply to the European Court of Human Rights but that application seems to have got nowhere.

The High Court looked at material involving some of the women in the UK who have had Joe Donor’s service- remember that what he says he wants is to produce more children ‘without complications’

  1. I have access to social services and police records concerning Mr Albon’s involvement with a woman, MC, from Norfolk. They met in January 2021 and agreed to undertake what Mr Albon likes to call “partial insemination” or PI. This is sexual intercourse without kissing, foreplay or affectionate touching. MC fell pregnant by February 2021 and Mr Albon and MC then started living together in Norfolk in March 2021. The following month they moved house within the county. Each of MC and Mr Albon alleges that the other was physically violent over the months from April to August 2021. Mr Albon made several complaints to the police about MC being violent towards him, stalking, causing criminal damage, and having assaulted her child. Nevertheless, on 1 July 2021 Mr Albon and MC appeared together on This Morning, announcing that they were now engaged to be married, under the story headline, “I slept with a Man for his Sperm.” On 4 August 2021, whilst pregnant with their child, MC moved out of their home but Mr Albon remained living there. The police imposed bail conditions on MC. Later that month, MC complained to the police that Mr Albon had been domestically abusive toward her including using physical violence, isolating her from her support network, and perpetrating emotional, sexual and financial abuse. Social Services asked Mr Albon to move out of the family home and he did so on or about 24 August 2021.
  2. In November 2021, Mr Albon told Norfolk police that MC “suffers a personality disorder that causes her to act this way. He was aware of this at an early stage in the relationship…” . MC gave birth to her and Mr Albon’s child, a boy, in October 2021. Although MC wanted the police to pursue a prosecution against Mr Albon for domestic abuse, she did not attend an appointment to make a statement and in December 2021 the Norfolk Police closed the file on her complaint for want of co-operation. In January 2022, Norfolk Police also closed the file on Mr Albon’s complaints against MC for lack of further evidence from him.
  3. In October 2022, MC reported to Norfolk police that Mr Albon was seeking access to their child and asking for a photograph and had threatened court action.

I think there may have been some complications here.


  1. There are common themes in relation to these six families who have had involvement with Mr Albon in the UK since his arrival here in September 2020. Five of the six women are known to have mental health issues or histories that make them vulnerable. Most of them are known to have believed that it was understood that Mr Albon would not play any parental role in the lives of the children he and they hoped to produce. All six relationships with these women ended in police involvement and/or litigation. All but one of the mothers do not want him to have anything to do with their children and the one that does, has agreed contact limited to one meeting a year, an arrangement not yet approved by the court as being in that child’s best interests. This is Mr Albon’s track record in relation to the six donor-conceived children in the UK of which the Court has evidence.

What do the Court say about Mr Albon?


  1. Mr Albon advertises his services as an unregulated sperm donor under the pseudonym Joe Donor. He has written self-published books about sperm donation. His account of his donor service can be summarised as follows:
  1. a. He promotes himself as a sperm donor online using Facebook and Instagram including Facebook groups which he administers.
  2. b. He makes no claims to a woman who contacts him about his health or the absence of hereditary conditions. In fact he has tests for HIV about once a year but not for sexually transmitted infections (“STI’s”). He has not been screened for any genetic conditions.
  3. c. He does not enter into any oral or written agreements with the woman.
  4. d. He offers natural insemination (NI), artificial insemination (AI), and what he calls partial insemination (PI) which is sexual intercourse without any intimacy (no kissing, foreplay or prolongation of intercourse for pleasure).
  1. I have seen a number of examples of Mr Albon’s online postings and self-promotions. He has recently posted images and audio recordings of his offer to send out samples of his sperm by post for the purpose of artificial insemination. The images include him wearing latex gloves, holding syringes beside a centrifuge machine.
  2. Mr Albon is frank about his sperm donor activities. He regards himself as performing a job which benefits women. He says that just over 50% of the women who use his service are inseminated through intercourse and the rest inject his sperm using a syringe. He says that he leaves it entirely up to the women who become pregnant whether they want him to have any contact with the child. He says that he maintains contact with upwards of 60 of the children he has fathered and that he is named on about ten birth certificates. When asked to name any of his donor-conceived children with whom he maintains contact he was unable to name more than ten and the Court is aware of six of those in England and Wales as set out above. It was difficult to believe that he maintains contact with 60 or so of his children and he produced no evidence to corroborate that claim. He told the Court that currently there are some six or seven women in the UK who are pregnant after having used his sperm.
  3. The women who use Mr Albon as a sperm donor mostly fall into two camps: women in a lesbian relationship and women who are not in any relationship. The risks they take in using a prolific, unregulated sperm donor who operates as Mr Albon does, are obvious. They do not know anything about the health of his sperm, his genes, his physical or mental health, or his history. Like MA, many will not even know his real name. There is no record of his other children, their mothers, or where they live. There is nothing to prevent Mr Albon seeking declarations of parentage, parental responsibility, or child arrangements orders in respect of the children he fathers.
  4. The three advantages of Mr Albon’s service for women who use it are (i) it is cheap, (ii) it is available almost immediately, and (iii) no conditions are attached and no questions are asked: the evidence before the Court shows that Mr Albon will have sex with, or provide his sperm for artificial insemination, to just about anyone who asks. I received no evidence of any occasion when he has declined to offer his donor service to a woman who has asked. He is indiscriminate in that respect.
  5. Mr Albon’s motivations for acting as a prolific sperm donor have been questioned at this hearing. Is he motivated by the desire to have sex with many different women? Is he compelled to reproduce? Does he enjoy gratification from knowing that there are scores of his children on the earth? Is he simply attention-seeking? Does he want to secure his immigration status? It is difficult to look into the mind of Mr Albon because he is not self-reflective. He has a matter of fact attitude toward what he does. In the documentaries or interviews I have viewed, he appears to regard his “work” as a both a humanitarian service and a bit of fun. He uses cartoon type imagery to promote his service. He refers to his semen as “Joe’s juice” and “baby batter”, and joked with a reporter who had accompanied him at a hotel where he was due to provide a sample of his sperm for AI, that a mug he was holding was a “cup of Joe”. He even put down his co-donor’s sinister comment about “bleaching Africa” as a joke.
  6. Mr Albon was given a warning about self-incrimination under CA 1989 s98 before he was asked well-targeted questions prepared by Ms Howe KC and Mr Simpson about the storage, processing and distribution of his sperm. In his statement of 15 March 2024 in the Durham proceedings, Mr Albon said,
  1. “I survive month to month on the money left over from the reimbursement of the costs associated with private sperm donations that are provided to cover my expenses. This can vary, but I generally have £800 a month left over from the expenses.
  2. I also get some payments from media for pictures and stories. This can vary but it generally works out at around £100 a month.”
  3. Mr Albon was asked about this statement. He confirmed that he charges £100 for the delivery of his sperm by post. He explained that he puts his sperm into a syringe, packages the product and packs frozen passata (tomato puree) around it which, he says, defrosts slowly and keeps the product at a suitable temperature. He then posts or couriers the package to the recipient. Although he has described his charge as being for expenses only, he told me that the costs associated with this service are about £50 (including the passata). He has not produced any evidence to verify this claim but, even on his own account, he still has £50 left over after the payment of expenses. He said that he has to pay his utilities and rent but these are living expenses and even if he was treated as running a business and could claim some of his rent and other outgoings as business expenses, the total costs to him of producing, treating, packaging and posting his sperm would not amount to £50 for each delivery he sends out. He said that the balance of £50 after expenses was “opportunity cost”. That is an economist’s term for the profit foregone from alternative activities when a chosen activity is undertaken. It is not an expense or overhead of a business. If, in March 2024, he had £800 a month left over after the payment of expenses and was clearing £50 per package, he must have been sending out about 16 packages a month.

(Ah, that’s why the passata….)

  1. I conclude that Mr Albon produces sperm and distributes it as a sole trader for profit. He uses terms such as “expenses” and “opportunity cost” to obscure the fact that sperm donation is, for him, a business. He has not produced any business records or accounts but on his own account the costs to him of shipping his sperm are no higher than 50% of the £100 he charges for that service. He advertises his services online using cartoon-like imagery and light-hearted terms, whilst at the same time creating the impression that his sperm is tested and packaged in laboratory conditions. He has used images of plastic syringes, a microscope, and a centrifuge machine in promotional material. He refers in such material to “quality controlled sperm”. He told the court that he uses a substance known as an “extender” added to his semen. He is in business and he makes money out of the business. As such, having regard to the provisions of the Human Fertilisation and Embryology Act 1990 set out below, there must be a concern that he ought to have had a licence at least for distributing his sperm in the course of business to aid reproduction.

And here is one of the sentences of masterful understatement that only a High Court Judge can deliver…


  1. Mr Albon is not a man troubled by self-doubt. He invariably describes his own conduct positively and seems not to recognise the personal turmoil he has left in his wake. None of it seems to have made an impression on Mr Albon. He has moved from country to country and at times from family to family. More recently he has found that shipping his sperm is more profitable than travelling to have intercourse with women, but otherwise the disputes and difficulties in which he has been embroiled have not caused him to change the way in which he operates. The turmoil created has not had an impact on his behaviour.

Findings about Mr Albon


  1. I have given careful consideration to all the evidence before making any findings of specific motives for Mr Albon’s applications in relation to CA and CB. I have been greatly assisted by the expert evidence of Dr Young and by having the opportunity to see and hear Mr Albon give evidence over many hours at the hearing. There is no evidence before me of any diagnoses of a personality disorder or a mental health condition but there are traits to his personality which emerge clearly from all the evidence. First, he has very strong personal defences such that he appears to have rock solid confidence in his own judgment and decision-making. Second, he lacks empathy and only has superficial relationships with others. Third, he is dismissive of those who do not agree with him or who question his behaviour and beliefs. Fourth, he has a strong will and a determination to get his own way. Fifth, he needs to feel validated and recognised. Sixth, he seeks to control others to prove that he is right, to secure recognition, to get his own way, and to serve his own ends.
  2. This sixth trait – controlling behaviour – is demonstrated in many different ways. He uses language to control narratives: he sought to do so in cross-examination and in his description of his business. He uses ambiguity to manipulate. Thus, he is ambiguous about his future involvement in the lives of his future children when he first has contact with their mothers. This allows him later to decide whether and, if so when, to seek to become involved. In many cases he chooses not to do so, but in others he does, as it suits him. When he needs a roof over his head he has crept into the lives of women to his advantage: he moved in to live with MB, with MC in Norfolk, and with MD in the North East of England. He uses others’ vulnerability and naivety to suit his own ends – for example persuading MB to send him messages she had received from MC, and seeking to exploit MA’s fear of losing her children to try to persuade her to register him as CA’s father. The evidence suggests that his practice as a sperm donor attracts a high number of vulnerable women. MA and MB have mental health issues, and MA has a borderline IQ. MC apparently had borderline personality disorder, MD and B had histories of mental health issues, and a referral was made to the police in Yorkshire after concerns that Mr Albon had had sexual intercourse with a woman not capable of giving consent (albeit that was not pursued further by the police). These are women whom he can seek to control. He has covertly recorded conversations, guided those conversations, and then sought to rely on the recordings for his own advantage. That is a means of exercising control over others.
  3. I find that Mr Albon has sought to control five of the six women in England and Wales who have carried his children whose identities are known to the Court and whom I have identified earlier in this judgment. I exclude MC in the Chelmsford case because I am yet to conduct a final hearing in that case and I do not have evidence before me in these proceedings on which I could find that Mr Albon has been controlling of ME. Nor do I have any evidence that she is vulnerable to manipulation by him. It might well be the case that ME has made a fully autonomous decision to enter into a written agreement with Mr Albon, uninfluenced by him or anyone else. The arrangements they have reached may be in the child’s best interests. However, in the five other cases, including the two before me, there is evidence of Mr Albon exercising controlling behaviour. He has also used litigation as a means of control, as he tried to do in the Welsh proceedings and, I find, in both of the present proceedings. Pertinently, he told the Court that he is now making money by writing pre-action letters for others, in particular people who claim to have been defamed.

The Court did grant him the declaration of parentage that he sought, declined to give him parental responsibility, and gave him some contact with CA

For CB and CX the Court made Care and Placement Orders and directed that a copy of the judgment be provided to the Home Office and the Human Fertilisation and Embryology Authority, both of whom I suspect will be in touch with Mr Albon.

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Overseas assessment and delay

Posted on March 12, 2025 by suesspiciousminds

There’s been a tension for quite a long time between children’s timescales (and the 26 week timetable and principle of no delay) versus exploring all realistic alternatives to adoption.

This Court of Appeal case is a decision on this point, and in my view a helpful reminder to the parties and Courts that the welfare of the child is paramount and that the impact of delay in decision-making for the child needs to be bourne in mind.

Christopher Marlowe said of Helen of Troy that she had the face that launched a thousand ships, and Isaac Asimov postulated later that therefore a milli-Helen is the quantity of beauty sufficient to launch a single ship. This post will launch if not a thousand bookmarks, then at least a hundred for every LA lawyer in the country will want to have this one to hand from time to time.

M (A Child) (Placement Order) [2025] EWCA Civ 214 (06 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/214.html

At the start of the Appeal hearing, the proceedings had been going on for 62 weeks. I won’t go into the background of why the parents weren’t considered suitable, but for a long time, the issue of placing the child with an aunt and uncle in Pakistan was being considered. By the time of the final hearing, the Local Authority took the view that they no longer supported a placement of the child in Pakistan.

That was broadly for these reasons – 14 months after proceedings had been issued, the aunt and uncle still had no visa to come to the UK – that would take at least a further 6 weeks – after that, they could come to the UK and participate in a detailed assessment of their parenting with the child, then obtaining a Court order in Pakistan which might take 6 months. There were also considerable issues with the financial support that the aunt and uncle would need to be able to care for the child.

38.The judge having reached her conclusions in relation to placement with the mother, proceeded, against the background of the welfare checklist, to consider whether it was in M’s best interest to adjourn the proceedings in order to “explore whether it is in fact in [M]’s best interests to be placed in Pakistan, and whether such a placement is actually achievable in [M]’s timescales”.

  1. The judge recorded that the aunt and uncle accepted that:
  2. The judge said at paragraph [76] that the plan to place M with his aunt and uncle was “fraught with uncertainties”. She then particularised issues such as the need to obtain visas, that the local authority were no longer willing to fund a UK assessment, the further delay occasioned by the assessment itself followed by further court proceedings and the need for a mirror order.
  3. The judge emphasised the importance of timescale because of the impact on M. The judge went on at [78-79]:
  4. The judge held at [81] that the adjournment would have to be at least three to four months to complete the assessment and return to court, and probably “more akin to six to twelve months before successful placement could be achieved if the assessment were positive”. There would, she said, be a real possibility that the assessment would not be positive and/or that M could not be placed with the aunt and uncle, which would lead to further delay. The timescales for adoption were, she held, “both shorter and more certain”. She accepted the evidence that a match could be found within a reasonable timescale with placement within months.
  5. Against the backdrop of her findings, the judge reached the conclusion at [82] that it was not in M’s best interests “even when judged by the yardstick of considering his lifelong best interest” to continue the process of assessment with the aunt and uncle “despite all the detrimental consequences that flow from such a decision”.
  6. The judge concluded by saying that whilst it had been a difficult case, it was not a finely balanced one. She expressed her empathy with the aunt and uncle “who have done all in their power to offer their nephew a home”. However, “further delay for an unknown length of time and for an uncertain outcome is quite contrary to M’s needs”.

The Court of Appeal looked at the question of whether the trial Judge was unreasonable and unduly pessimistic about the plan.

53. That there was a real possibility that the assessment might fail was in my judgment an inevitable consequence of the uncertainty inherent in the whole complicated plan; for example, it may simply not have been viable because the funding was no longer available from the cash-poor local authority or the applications for visas may be refused. M may himself have found the introduction to his aunt and uncle with the language barrier just too difficult and, as had been identified by Ms Rafiq, there were issues with schools and the home conditions. These were all potential stumbling blocks. For my part I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great. Should the matter have been adjourned then, providing they managed to obtain visas, the family would have relocated to a strange country for an unspecified period of time for assessment and, if successful, the uncle would then return to Pakistan with the two older (but by no means grown up) children. Once home they would have to manage without their primary carer while their father worked punishingly long hours, potentially for many months, whilst court proceedings took their course in both the UK and Pakistan, proceedings which would be necessary in order to provide essential protection for M’s position in Pakistan.

The Court of Appeal re-emphasised the point made in Re W 2016 that there is no ‘right’ or ‘presumption’ for a child to be brought up within their natural family {author note – I don’t particularly like this aspect of the Re W decision, but it is the law}

  1. The judge did not ignore the positive aspects of the CFAB assessment or the cultural advantages to a family placement, and in conducting her finely tuned balancing exercise specifically said, as recorded at [41] above, that there were grounds for optimism based on the CFAB assessment. However, as Ms Styles rightly submitted, optimism is all well and good but when considering the future of M, a hard-edged evidential approach is necessary.
  2. Notwithstanding the commitment shown by the aunt and uncle to offering M a home and the undoubted advantages if it can be achieved, and that it is in a child’s best interests to have a family placement, in my judgment there were a myriad of reasons why the plan to place M in Pakistan might fail. Given the long delay which had already taken place in getting the proceedings to trial, that the assessment might not be successful was a feature which the judge was bound to have at the forefront of her mind. As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family. In Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, McFarlane LJ said:
  3. The judge was alive to the challenges and spoke of “two contrary principles having pulled the court in different directions, the importance of children’s welfare of being brought up by natural family where it is safe and achievable, and the harmful effects of delay”. Ultimately the judge concluded that M’s welfare demanded that he be placed for adoption and that when she performed a proportionality cross check she said she was “satisfied that, despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do”.

In looking at whether the Court should have granted a further extension to the proceedings to allow for further assessment of the aunt and uncle, the Court of Appeal said this:-

The court was also taken to Peter Jackson LJ’s judgment in Re S-L (Children) [2019] EWCA Civ 1571; [2020] 4 WLR 102, in which he considered the use of s32(5) CA 1989. In relation to a case where improper use had been made of the provision, he made an observation which applies equally to all cases:

“12. In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay, enshrined in section 1(2) Children Act 1989. Judges in the family court are well used to finding where the balance lies in the particular case before them and are acutely aware that for babies and young children the passage of weeks and months is a matter of real significance. Sharpening this general calculation, public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.
13[…] the recorder’s decision to adjourn therefore squarely engaged the above provisions in relation to both children and she was obliged to explain why an extension of the timetable was necessary. In any event, she was under a general obligation to ensure that an adjournment was justified. Adjourning a decision should never be seen as ‘pressing the pause button’: it is a positive purposeful choice that requires a proper weighing-up of the advantages and disadvantages and a lively awareness that the passage of time has consequences”.
It was agreed by all parties that at 18 months old M is in a critical phase for making long term healthy attachments and that the older he is the more likely he is to encounter attachment difficulties and the harder it would be to find a match if he were to be adopted. Ms Darkens, again in reflective mode, when asked in oral evidence about M’s timescales said that “the timeframe for the optimum outcome for him was months ago”.

Mr Styles highlighted that many matters critical to the outcome are simply outside the judge’s control. Three areas spring to mind:

(i) Obtaining funding from the Resource Panel: the Panel would have to approve the essential funding notwithstanding that the local authority’s care plan is no longer to place M with the aunt and uncle;
(ii) Obtaining a visa from the Home Office: Mr Gupta accepts that visas have to be obtained and that the courts cannot put pressure on the Home Office. He says, however, that it is routine for the Home Office to be asked to expedite an application for a visa. I agree that the local authority could do that, but they certainly could not do so by reference to a court-prescribed timetable;
(iii) Obtaining a Guardianship Order in Pakistan: the uncontradicted evidence of Mr Khan is that it is preferable for an order to be obtained in Pakistan prior to placement there. The evidence is that this can take up to six months. It goes without saying that even the most rigorous timetabling by a UK judge can have no influence on the processes of the courts of a foreign jurisdiction.
These and other matters which are outside the control of the Court have to be taken into account when deciding whether a further extension of the proceedings are to be permitted. Further, it has to be remembered that “Day 1” for the consideration of acceptable timescales is not by reference to the date that a court agreed to adjourn the final hearing, but is the date on which the care proceedings were issued, as Peter Jackson LJ said in Re S-L (cited above), any court should be “acutely aware that for babies and young children the passage of weeks and months is a matter of real significance”.

Notwithstanding Mr Gupta’s realistic submissions, supported by Mr Brookes-Baker on behalf of the mother, and Ms Shaikh on behalf of the father, the judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgment she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.

Conclusion

M has been in care all his life. At the date of the trial he was 14 months old and the aunt and uncle, through no fault of their own, were not in a position to say that they could, as of that date, be regarded as a realistic option for the placement for M with them.

In my judgment for all the reasons set out above, I would endorse the judge’s observation that the decision was a difficult one but not a finely balanced one. What made it difficult was that the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable within his timescales and that M’s best interests could only be served by the making of a placement order with a view to his being adopted in the UK.

For these reasons I dismissed the appeal against the making of a placement order.

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Leave to oppose adoption test – the new test

Posted on May 2, 2023 by suesspiciousminds

The last time the Court of Appeal really grappled with the test on leave to oppose adoption it was Re BS 2013, which some of you may, just may, have heard of.

So it was with some trepidation that I read this case

M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 (18 April 2023)

https://www.bailii.org/ew/cases/EWCA/Civ/2023/404.html

A few big things arising from it :-

Firstly that the Court of Appeal say that in all cases where a Placement Order or Care Order is made, the Local Authority should obtain at its own expense a transcript of judgment and share with the parties. There is no analysis in this paragraph as to why, given the importance of the transcript to all, that the costs should not be shared between the LA and legal aid agency. I don’t know if this was the subject of argument, but it obviously places a substantial additional expense on LA budgets – luckily at a time when the Government coffers are very much overflowing and they are desperate to get all of that surplus money out to Local Authorities, whose biggest problem with that are building extensions to the Scrooge McDuck-esque swimming pool of gold coins that are presently too small.

Transcripts of judgment in placement order proceedings

A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.
Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

Anyway, that’s done now – get transcripts in all cases with placement orders or care orders (though you may remember that the transparency guidance was that that Judges should publish all such judgments on bailii – and that seems to be a custom honoured in the breach more than the observance and would have rendered this moot)

Second is the refined test

I would therefore state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:

  1. Has there been a change in circumstances since the placement order was made?
  2. If so, taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

More detail on the two limbs later

Third is the continuing judicial equivalent of a Wikipedia edit war, where the Court of Appeal give a decision, Mostyn J then gives a decision ‘correcting it’ and the Court of Appeal then overturn the Mostyn J decision though not on an appeal of that case but just the next time a case comes up that refers to it. (see earlier post today)

In this case, it is the decision by Mostyn J that a ‘change of circumstances’ has to mean something that wasn’t present or foreseen/foreseeable at the time.

I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16-19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:
“Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power.”
This approach finds no support in Re P, something that Mostyn J addressed in Re SA at [28]:
“Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.”
There are several reasons for rejecting this approach:
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court’s decisions in Re P and in Re B-S.
(3) The proposition was inspired by an analysis of statutory provisions relating to the court’s power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
For these reasons, the proposition in Re SA is wrong and should not be followed.

For my part, I can see some sense in Mostyn J’s view, but that’s pretty academic now.

Fourthly, and this is really good news, there’s a change to LASPO which should make it easier for parents to get legal aid to make these applications – HUGE !!

There is further refinement to the second limb of the test, which has always been the much more difficult element to grapple with.

Here the Court of Appeal say that the prospect of success of the opposal to the adoption order being made is an important factor but it is not a test, still less a determinative one.

From this, it can be seen that the prospect of success in opposing adoption if leave is granted is an important element to which the court must have regard, but it is not a test in itself, still less an exclusive one. It is helpful as a reminder that the question to be answered is whether or not there should be an opposed adoption hearing. However, the expressions ‘more than just fanciful’ and ‘solid’ are not true opposites, in that something that is not fanciful may fall short of being solid. This may lead to the court being pressed with different formulations and can cause inconsistency if the court treats prospects of success as the only benchmark.
I also note that there will be cases, of which the present one is an example, where the distinction between opposition to an adoption order and rehabilitation to a parent collapses. That situation will arise, and not uncommonly, where adoption and rehabilitation are the only possible outcomes.
Drawing matters together, I suggest that the essential question for the court at the second stage is this: Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child’s welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent’s prospects of success, and the impact on the child of contested proceedings.
In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.
Finally, the application for leave to oppose must be decided on proper evidence but experience confirms that oral evidence is not usually necessary. The court will want to take a broad view of the evidence before it, as befits a decision at the leave stage. There has been a very recent and welcome change to the availability of legal aid for parents making applications to oppose adoption: see Regulation 5 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023. This should enhance the fairness of the process and assist the parties and the court to focus on the issues, but at the same time the court must ensure that hearings and timetables are not unduly lengthened.

So the Court of Appeal approved way of looking at the second limb of the test is this

Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

That seems easier to follow than the previous principle of ‘solidity’ which I must confess I’ve never had a ‘solid’ grasp on.

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Lacking / unreliable / generally weak

Posted on July 15, 2022 by suesspiciousminds

This is a case determined by Her Honour Judge McCabe – it isn’t binding authority for anything and is a fact specific case.

Given that, regular readers of the blog will discern that either the case has got some interesting quirky detail or it is a case where something has gone badly wrong. That is correct.

P, J, E-R, E-L (Children : Care Orders) [2022] EWFC 73 (28 March 2022)

http://www.bailii.org/ew/cases/EWFC/HCJ/2022/73.html

It was a set of care proceedings involving four children. The Local Authority were asking for Care Orders and Placement Orders (ie that they felt the four children should be adopted). I’m not going to go into the reasons why the children couldn’t live with the parents here – the judgment deals with it, but that’s not the significant part.

18.  Much of the time in evidence was taken up exploring the rationale behind the Local Authority’s care planning and seeking to put ‘flesh on the bones’ thereof.

19.  Given the very stark difference of opinion between the Local Authority and the Guardian, and the fact that the social worker went off sick after the first day of the hearing, it became necessary to seek to look further up the ‘food chain’ to consider whether the Guardian’s concerns might be taken on board by the Local Authority. I ended up directing the head of services to attend on what should have been the final afternoon at a time when I should have been giving judgment in this case.

20.  If I say that the Local Authority evidence has been lacking / unreliable / generally weak, I am afraid that that would be an understatement.

The Local Authority plan at the start of proceedings was that they wanted to place all four children together, but that if they couldn’t manage to find a placement for all four children together that they would be instead in two placements of two children each.

Something so fundamental as to how to divide the four siblings into two groups of two if they are not to be placed together. The care plans submitted placed the children in a particular format of two groups of two. The ADM documents placed them in a different two. When asked why this was, in her oral evidence the SW started by saying that it was a typographical error. She then went on to acknowledge that it wasn’t, it had in fact been her view that the middle two should be together and the oldest and youngest together due to the strength of relationship of the middle two, and that this had been a well considered plan, due to the nature of the relationship that they had. This had then changed when the team manager assessed the documents.

  1. Now I am told, in the team manager’s witness statement, that indeed it had been a typo, never picked up in the court documents. That it is a typo is confirmed by the ADM in his statement.
  2. It is not far short of bewildering to try to follow the Local Authority’s care planning in this case. The together and apart assessment, which the team manager and the ADM in his recent statement, confirm that they relied on in their decision making, was accepted by the social worker in her evidence (quite rightly, in my view) as being an assessment that is “fundamentally flawed”.

Obviously typographical errors do get made, and that’s unfortunate with something so important, but the Court was put in a very difficult spot here – there were effectively two different plans as to how to place the children separately – the social worker’s evidence was originally that this was purely because of a typo, but then that it was not a typo but that she had been overriden by her manager and that her assessment of how the children should be placed based on her knowledge of them had been overruled.

Now, frankly this does happen sometimes. Social workers do not work in isolation – they do have managers and senior managers, and sometimes the views of those managers does overrule the social worker. But it seems that there was not candour about this. Two differing explanations were given.

By the end of the case, the Local Authority had abandoned the plan for all four children to be placed together and was presenting instead the proposal that two placements be found, each caring for two children. (I can’t establish with precision whether this proposal was the one in the care plans, or the social worker’s view that the eldest and youngest be placed together and the middle two placed together)

I directed that the head of services should attend Court for 2pm on the last day of the trial so that investigation and explanation could be provided. I was rewarded by the team manager physically attending at 3pm. By 5pm the Local Authority was absolutely no further forward in being able to explain what therapeutic intervention would be made available and when. The head of service had declined to attend via Teams (I having been told earlier in the afternoon that she was available to attend remotely ‘from 4pm’) but then attended at 5.05pm and, in fairness, immediately appeared to understand the severity of the situation.

There then followed an ‘emergency’ statement from the team manager that came in after the close of the oral evidence, making efforts to put flesh on the bones in justifying the Local Authorities’ care planning. I’m afraid that I did not find this to be an impressive piece of evidence. It repeated the various platitudes (examples being: it is best to place siblings together if you can, adoption provides the most permanent sort of permanence and so forth) but I’m afraid that it took me no further in truly understanding these particular siblings and their particular needs.

The judgment sets out the evidence given by the Guardian in some detail

When she was recalled to give evidence on the final day, the GAL said this:

  1. “It’s really difficult to say it without saying it: the lack of appreciation from the trust as to what these individual needs are for the children and the lack of ability to reflect on what we’ve heard and take into account both now and in longer term….
  2. The landscape as to what has been progressed by LA and put remains confusing, I’m confused, I don’t know what the Care Plan is, I don’t understand contingency measures. I don’t know how court can make final orders and trust can be trusted to execute those Care Plans properly…..

I’ve never been in this position ever as a GAL, I wouldn’t feel I am executing my roles to the children if I allowed the care plans to be signed off now…..

  1. Concerns me we’ve had these proceedings running now for almost two years, the children have been represented by me, a solicitor, significant oversight from a number of professionals, should have been concluded last week, with decisions that appear to be made off the hoof, knee jerk decisions, with long lasting outcomes for the children…..
  2. No confidence that the Care Plans we are being provided with on rolling basis are right”
  3. She talked of an atmosphere in the case of confusion and said this:
  4. “It’s massively concerning the state of the evidence and how its been presented to the court, even now today, the trust don’t seem to have a proper understanding of what the children need moving forwards…..
  5. Less than 40 minutes ago, the plan changed from placement all four together, to the parallel of two and two……
  6. It’s confusing and I think the court needs proper evidence before it is in a position where trust is given to professionals to ensure the childrens’ needs are properly met in the longer term. Options extremely limited……
  7. I’m not happy, I’ve known these children long enough to know they deserve what’s right for them, not confident that the Care Plans meet their needs”
  8. It should be noted that all of this was said at a time when it was necessary to recall the Guardian to give evidence after having a further morning of evidence from the team manager who had had to prepare a statement of evidence over the weekend.
  9. The way in which this case has proceeded is, in my judgment, wholly unacceptable. These are applications for placement orders for four children. The parents, each of whom have their own mental health vulnerabilities, oppose the applications. They should not be having to react, with their Counsel, to ever changing plans and evidence served last minute. It is difficult to understand how it is that these proceedings can be so heavily delayed and yet come into Court in such poor order, and as I made clear at various points during the hearing, this could not have been rendered more painful and difficult for the parents had it been deliberately designed that way. Having said that, I ensured that time was given at each stage that it was necessary, and I am satisfied that the parents have in fact had a fair and full hearing. It was unfortunate, however, that parents who are facing the permanent loss of four children, had to endure and listen quite so much and wrangling between professionals.

The Guardian made an application for an independent social work assessment to carry out the social work assessment of the children’s needs and relationship dynamics to inform how the children should be placed.

  1. The Guardian has made, after the close of the evidence, an application under part 25 for a further assessment. She considered that this was necessary because somebody independent was needed to carry out, in blunt terms, the work that the Local Authority should have done and that she no longer trusted that they would do. She believes that there needs to be a proper assessment of the needs of J and P, whether they should be placed together or apart, whether they should be placed for adoption or long term foster care, what their therapeutic needs are and how they can be met, by whom and when.
  2. I have found this difficult to wrestle with. On the one hand, I completely understand why the Guardian has felt compelled to make this application. Such ‘analysis’ of realistic options as could be found from amongst the thousands of pages of evidence in this case was woefully inadequate. That much the team manager, in fairness, accepted. For these two children, on the very cusp of what would be considered an ‘adoptable age’ and with marked behavioural difficulties, and difficulties in their own relationship, the welfare analysis carried out by the Local Authority should have been exquisitely sensitive and absolutely focussed on the individual characteristics of the children.
  3. Instead, what the Local Authority provided was little more than the usual platitudes of ‘adoption provides the best permanency’ and ‘siblings should be raised together’. I am afraid that, even after the additional statement of evidence of the team manager, things did not get much better. I agree with the Guardian that the care planning, when a limited concession was finally made at Court, could be described as ‘knee jerk’.
  4. I understand why there is so little trust in the Local Authority by the Guardian.

The Court did not grant that assessment – the Court made Care Orders and Placement Orders for the youngest three children, but determined that the eldest child P should be placed in long-term foster care rather than adopted.

I make some concluding remarks. This case has been extremely difficult and almost impossible to ‘keep on track’. It has taken the strenuous efforts of the Guardian, Counsel for the Guardian, and the Court to ensure that the case proceeded in a proper manner, to the extent of the Head of Services for the Local Authority having to be summoned to Court at 5pm on a Friday afternoon.

  1. This should never have been necessary and was only made necessary because of the almost absence of proper, responsive, careful planning by the Local Authority. The Local Authority’s advocate was, at some points, left with nobody at all at Court to assist her or give her instructions, and at times with nobody from the Authority even listening in to the evidence on the Teams link.
  2. The allocated social worker, who absolutely did her best to assist the Court, had to admit that her together and apart assessment was fundamentally flawed. That evidence was given on the first day of the hearing. From that point onwards it should have been patently obvious to the Local Authority that there was a real issue with their care planning and that careful consideration needed to be given to the complexities of the sibling relationship and their individual needs. Instead, the Local Authority remained doggedly fixed with its original care plan, providing generic reasoning only in its defence, and failing to see the complexities and nuances of the case.
  3. In the end I have made orders that could be considered to be fairly predictable and reasonably uncontroversial on the facts of this case. They were the orders initially being suggested, for very good reason, by the childrens’ Guardian, and had the Local Authority been able to bring a more responsive, thoughtful, flexible eye to what was happening in Court the proceedings could have been much shortened and the parents spared having to listen to lengthy arguments amongst professionals about how care planning for their children should or should not be undertaken. I very much hope that this will not have to happen again.

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Care proceedings where parent was adopted

Posted on April 21, 2021 by suesspiciousminds

I’ve not come across this question before, so that’s always attractive to me.

And then having seen a question to which I didn’t know the answer, I see that Cobb J is the Judge, so I’m going to get an answer that is clear and shows all the working but succinctly. I’m fairly redundant as someone who summarises and makes things shorter and simpler when I get a Cobb J judgment. I could just put up the link and call it quits.

Anyway, the question is – when a parent in care proceedings is adopted, and the birth family have come back into their life, do the LA have a duty to assess the BIRTH family as potential carers for the child?

F, Re (Assessment of Birth Family) [2021] EWFC 31 (12 April 2021) (bailii.org)

Within these public law proceedings, is there any obligation on the Local Authority to assess members of the ‘original family’[1] (i.e., the biological/birth family) of the mother of the subject infant child (F), where the mother herself was adopted as a child and raised by adoptive parents?

The arguments of the parties

Ms Persaud argues that it is incumbent on the Local Authority to assess members of the birth family; she essentially argues:
i) they are bound to the mother and to F by a relationship of consanguinity; the legal severance of the family relationship has been “socially undone” by their recent contact;

ii) they know of F’s existence;

iii) they are interested in F; at this stage, F’s ‘birth’ maternal grandmother has not indicated any wish to care for F, but wishes to have contact;

iv) the birth maternal grandmother apparently successfully cared for a child after the adoption of the mother and her brother;

v) the mother continues, even now, to maintain some relationship with her birth father by text and phone;

vi) there are members of the wider family in respect of whom it is understood there are no social work concerns and who appear to be caring adequately for their own children.

She further argues that I could not/should not make the decision now but should await further outline information from local authorities in which members of the birth family live (they are scattered around the country) in order to reach a more informed view.

Ms Anning on behalf of the mother strongly opposes this approach. She argues that the decision should be made now, and that there should be no assessment of her client’s birth family. She makes the following points:
i) The mother strongly opposes any assessment of the birth family; she sees her adoptive family who raised her since she was six as her ‘family’. The mother’s view must weigh heavily in the evaluation of the issue;

ii) The mother contends that the birth family would be wholly unsuited to care for F; she relies on their historical failure to care for her, and what she knows of their current lifestyles; her relatively brief re-engagement with them has adversely affected her;

iii) The mother has in fact currently ‘fallen out’ with her birth mother; the prospects of any family placement within the birth family being free from conflict or drama is small;

iv) The mother feels sufficiently strongly about the issue of assessment that were it to go ahead, she fears that it could destabilise her currently reasonable mental health, and jeopardise her own chance to care for F; she does not feel that she is in a psychologically strong place, and feels anxious about embarking on the next phase in which she will be assessed in the community with F with this ‘hanging over her head’; I have in mind the expert opinion which suggests that if the mother engages successfully in psychological therapies, she may well be in a position safely and appropriately to care for her daughter;

v) Any assessment of the birth family would create divisions within her family – her parents who adopted her many years ago; and with her foster parents;

vi) The birth family, as a matter of law, ceased to be legally the mother’s family when the mother was adopted; there are no recognisable enduring legal rights;

vii) The Article 8 ECHR rights of the birth family are non-existent, or at best highly tenuous, given the lack of legal rights and the limited relationship between the birth family and the mother and particularly F; Miss Anning understandably relied in this regard on the comments which I made in Re TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6, and those of Peter Jackson J as he then was in Seddon v Oldham MBC (Adoption: Human Rights) [2015] EWHC 2609 (Fam) at 2, to the effect that the making of an adoption order brings pre-existing Article 8 rights as between a birth parent and an adopted child to an end.

Ms Kelly, on behalf of the Children’s Guardian, is, first and foremost, critical of the Local Authority for the delay in bringing this issue to the court many months after it first accommodated F. She further contends that no obligation falls on the Local Authority to assess the birth family in this case, and indeed that given the mother’s opposition to this course, it would be counter-productive for it to do so. In this, she aligns herself with the position taken, and the arguments advanced, by Ms Anning on behalf of the mother. She makes the additional point that one of the key philosophies which underpins a family placement for a child who cannot be cared by his/her parents is to ensure the continuity for the child of blood ties within established networks, where a parent may be able to continue to play a normal/natural role; this, she submits, would not truly be available here for although blood ties would be restored/preserved, the current difficult and tenuous emotional ties between the mother and her birth family, and the absence of legal relationship which was of course dissolved by the adoption many years ago, would make any placement very problematic indeed.

My gut feeling on this, having read those arguments, is that I can see why the Local Authority wanted the Court to answer this question and that I agree with the arguments put forward by the mother that where the mother doesn’t want her birth family assessed, that is the end of it. If the mother were actively putting any of them forward, I’d say they should be assessed.

Conclusion

For the reasons articulated clearly and comprehensively by Ms Anning and Ms Kelly (summarised at [15] and [16] above), and further elaborated on in the section above addressing ‘legal principles’, I am satisfied that the Local Authority should not embark on any assessment of the birth family in this case.
I am satisfied that the mother’s birth family are her ‘original’ family (as per ACA 2002) but are not her current ‘family’ nor are they her ‘relatives’ as those terms are used in Part III of the CA 1989. In that respect, their status (if any) in relation to F is materially different from the status of the extended or wider family as discussed in the caselaw referred to above, namely Re A, B, C and Re H. Furthermore, the birth family’s limited experience of F during a short visit in March 2020 (which culminated in a section 47 investigation as a result of the serious injury to F) falls a long way short of supporting any finding that they had acquired Article 8 rights to a family life with F. This right is not established on the basis of biological kinship alone.
Even if the birth family could bring themselves within the definition of ‘family’ for the purposes of the statute/caselaw, this does not place upon the Local Authority any obligation under statute to inform, consult, assess, or otherwise consider them in circumstances such as these (see [21]/[22]/[23] above). In that regard, I have assessed what the mother says about her birth family and have done so objectively and critically. In this context, I have been able to undertake the necessary ‘analysis’ of their potential as ‘realistic options’ as long-term carers of F at this stage, without undertaking or commissioning a fully-fledged ‘assessment’ (see Re JL & AO at §92(2)). On the evidence presented, there are at least four clear pointers steering away from the birth family as a realistic option to care for F: (a) the fact of the mother’s adoption 14 years ago following her upbringing characterised by turbulence and significant neglect (see [6] above); (b) the events surrounding the injury to F in March 2020, and their failure to report the same (see [9] above); (c) the accepted fact that the mother and her birth mother have a difficult relationship (see [12] above), and (d) the current view of the professionals that the mother should avoid contact with her family (see [9] above).
Quite apart from those considerations, I accept that the mother has a strong opposition to the birth family being assessed; this carries significant weight in my assessment (see Re A, B, C at §89(6)(5), Re JL & AO at §50, Re H at §37). In this case, I am further satisfied that involving the birth family in assessment would be likely to have a deleterious effect on the mother’s fragile mental health, at a critical time when she herself is being assessed in the community as a long-term carer for her daughter. It would also, I am satisfied, cause unwelcome and avoidable division in the relationship between the mother and her parents (Mr M and Ms N).
I should add that I could see a situation in which a birth family could properly fall to be assessed in circumstances such as these, where for instance the previously adopted parent (the mother or father of the subject child) had re-connected successfully with his/her birth family, and this had been a wholesome and successful reunion. But that is plainly not the case here.
That is my judgment.

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Notification of fathers or family in voluntary adoption cases

Posted on February 4, 2020 by suesspiciousminds

 

 

 

The Court of Appeal have given a judgment in three linked cases where a mother wished to arranged for her child to be adopted and the Court had to decide whether or not to inform the father/relatives

The facts and details about the 3 cases are at paragraph 90 onwards of the judgment. In the first, the Judge had decided not to tell the father and the Court of Appeal overturned that, in the second the Court decided in care proceedings not to tell the grandparents of the child’s existence and the Court of Appeal upheld that, and in the third the Judge decided that the father should be told and the Court of Appeal upheld that. Three very different sets of facts and three different outcomes, but helpfully the Court of Appeal analyse all of the relevant law and distil from it the principles and good practice to be applied in such cases.

 

A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2020/41.html

 

The new bit of law in this case is the Court of Appeal decision that when DECIDING whether or not a father or relative should be notified, the child’s welfare IS NOT the Court’s paramount consideration (or the Local Authority’s when they are making the decision). The Court is not deciding whether the child should be adopted (when welfare IS paramount) but who should or should not be told.

 

 

 

82.As noted above, there is uncertainty about whether what I have described as the core principles (welfare paramountcy, the prejudicial effect of delay and the welfare checklists) apply directly to a decision about notifying a father or relatives about the existence of a child or of proceedings. In a sense, not much turns on this: child welfare, prompt decision-making and a comprehensive review of all relevant factors are central to the notification decision, regardless of whether they are directly mandated by statute. Nevertheless, decision-makers are entitled to know whether their decision should place child welfare above everything else or not, and a correct formulation of the principles reduces the risk of error in decisions at the margins.

 

 

83.In the light of the observations in Re C v XYZ County Council, it is not surprising that a number of the later first instance decisions recite that the core provisions are engaged, or that a number of the parties before us so submitted. However, after closer examination, I am satisfied that the decision about notification does not directly engage these provisions. My reasons are these:

 

 

 

  1. So far as the CA 1989 is concerned, the decision is not one “relating to the upbringing of a child”. It is a decision about who should be consulted about such a decision.

 

  1. The same applies to the ACA 2002. The decision for the local authority and the court is not one “relating to the adoption of a child”, but a decision about who should be consulted about such a decision.

 

  1. The terms of s.1(7) ACA 2002, which apply only to decisions by the court, do not lead to a different conclusion. The subsection is not without difficulty – see Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616; [2007] 2 FLR 1069 at [19-24] – and I cite it again for convenience:

 

 

“In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

 

 

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

 

 

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

 

 

but does not include coming to a decision about granting leave in any other circumstances.”

 

 

Although widely drafted, sub. (a) does not cover the paradigm situation where a Part 19 application has been made, nor is that an application for any form of leave as mentioned in sub. (b). And even if there are proceedings of the kind mentioned in sub. (a), it cannot properly be said that every case-management decision within those proceedings is one to which welfare paramountcy applies. Such decisions are more apt for the application of the over-riding objective in Part 1 of the FPR 2010, which requires the court to deal with cases justly, having regard to any welfare issues involved. In my view the correct interpretation of the expression “coming to a decision” in s.1(7) ACA 2002 means coming to a decision about the substance of the application, whether it be an adoption order, a placement order, or a contact order. It does not include coming to a decision about who should and should not be informed of the existence of the child or of the proceedings themselves.

 

  1. This conclusion is consistent with the established distinction between decisions that are welfare-paramount and those that are not. This is made explicit in the cases reviewed at paras. 48-50 above and the corresponding silence in the entire line of authority preceding Re C v XYZ County Council is equally significant. To take one example, the decision of the House of Lords in Re D [1996] about withholding material in confidential reports did not refer at all to the equivalent provision to s.1 ACA 2002 in the Adoption Act 1976 (which by s.6 placed a duty on the court and the local authority to give first consideration to the need to safeguard and promote the welfare of the child). Likewise, in Re X [2002] this court determined the issue of whether the parents should be told that the foster parents were adopting the children by striking a balance between the competing interests, not by prioritising child welfare. This approach continued after the enactment of the ACA 2002, as can be seen in the comprehensive survey of the law conducted by Munby J in Re L [2007], which makes no reference to s.1 of the Act, to welfare-paramountcy or to the welfare checklist.

 

  1. Re C v XYZ County Council, while plainly correctly decided, is not binding authority on this issue, for the reasons I have given above.

 

  1. The later decision of this court in Re A [2011] does not support a welfare-paramountcy test.

 

  1. Lastly, there is no reported decision of which I am aware in which the outcome has been dictated by the court finding that the welfare of the child trumps all other considerations; instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.

84.For these reasons I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.

 

The Court of Appeal quote with approval the joint ACDS /CAFCASS procedure in relation to relinquished children. You can find that in a drop down menu here, https://www.cafcass.gov.uk/about-cafcass/policies/ but thankfully the Court of Appeal set out the key aspects

 

Urgency and thoroughness of procedure

86.A local authority, faced with a baby that may require adoption, either because a mother wishes to relinquish the baby for adoption or because there are proceedings with a plan for adoption, will be acutely aware of the need for a speedy decision. Where the mother requests confidentiality, it will need to decide at a very early stage whether an application to court should be made to determine whether or not the putative father or relatives should be informed and consulted. There will be cases where, applying the principles summarised in this judgment, the local authority can be very clear that no application is required and planning for placement on the basis of the mother’s consent can proceed. But in any case that is less clear-cut, an application should be issued so that problems concerning the lack of notification do not arise when adoption proceedings are later issued. In relation to a putative father, that application will be under Part 19 unless issues of significant harm have made it necessary to issue proceedings for a care or placement order; I would suggest that an equivalent application under the inherent jurisdiction can be made where a local authority has doubts about notification of a close relative.

 

 

87.I have referred already to the Cafcass/ADCS protocol, which has been taken up by a number of local authorities. In the proceedings before us, which involved three local authorities, the parties collectively filed an agreed statement of the steps that will need to be taken by the local authority in cases such as these. It is not for this court to determine local authority procedures but I record the parties’ agreement for the help that it may give to those facing these situations.

“1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child’s father or extended family:

 

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

◦The decision to place the child for adoption.

◦The reasons for not notifying the child’s father, or extended family, where possible gathering details about the father’s background and that of the family.

◦The mother’s background and information about her family.

◦Any cultural issues and how they have affected the decision made by the mother, or mother and father.

◦The implications of adoption for the child

◦The legal process required to achieve adoption

◦Other possible options for the care of the child

◦The adoption counselling service and how to access it

◦Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

 

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

 

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

 

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with ‘foster for adoption’ / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

 

 

 

  1. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.

 

 

 

  1. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother’s claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father’s family.

 

  1. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.

 

 

 

  1. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.

 

 

 

  1. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.

 

 

 

  1. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority’s position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members.”

88.In cases where an application to the court is issued, the court should be equally alert to the need for urgency, bearing in mind that time has already passed in preparation for the application and the hearing. The following matters will require attention:

 

 

 

  1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

 

  1. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children’s Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

 

  1. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian’s analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

 

  1. Receiving the mother’s account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

 

  1. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

 

 

The Court of Appeal then helpfully summarised the law as derived from their very careful analysis of the relevant authorities

 

89.The principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised in this way.

 

 

 

  1. The law allows for ‘fast-track’ adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

 

  1. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

 

  1. The decision should be prioritised and the process characterised by urgency and thoroughness.

 

  1. The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

 

  1. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

 

  1. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

 

 

(1) Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

 

 

(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

 

 

(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

 

 

(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

 

 

(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother’s wish would always prevail at the expense of other interests.

 

 

(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

 

 

(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child’s existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

 

 

(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child’s permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child’s established carers or to the loss of an especially suitable adoptive placement.

 

 

(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.

 

  1. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.

 

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Adoption as orthodoxy

Posted on January 29, 2020 by suesspiciousminds

 

 

 

I note that adoption is once again becoming a political football, with Government spokespersons holding it up to be the gold standard for children. We have been here before, and no doubt we will be here again.

This judgment from a Circuit Judge is therefore both timely and sadly timeless. None of what is said within it is newly binding (save that the Judge carefully and accurately records the statutory and regulatory sources, and the caselaw from which her analysis derives, and that some of the matters within it are long-standing regulations which have not been forensically inspected by a Court before) but I think all of what it contains is powerful and an important reminder of the stakes in which we are dealing when the Court is asked to make decisions about children’s futures.

It is also a case involving a decision about wasted costs in a highly flawed Placement Order application, and in which counsel who tried to be clever about the word ‘reprehensible’ received something of a lesson.

The case was heard by Her Honour Judge Lazarus (and my fingers in typing almost wrote ‘as she then was’ as though I had slipped forward in time a few years)

A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020)

https://www.bailii.org/ew/cases/EWFC/OJ/2020/B2.html

 

The case involved a a girl of 4, whose parents had accepted that the threshold criteria were crossed and that they could not care for her. The only realistic options before the Court were a plan of adoption or a plan of long term fostering. The Local Authority sought a Placement Order and thus a plan of adoption.

 

An important issue in this case was how large an immediate and extended family this child had, and the careful need to consider the impact on the child of maintaining or severing relationships with that family.

 

  1. Another key element of that background, as already mentioned, is the very large family-centred tight-knit active family group that she belongs to. This already holds out the prospect of meaningful relationships with at least 29 individuals in this country in her immediate family (parents, siblings, grandparents, nephews and nieces) let alone the further dozens in the next ranks of her extended family (aunts, uncles, cousins), many of whom are close in age to A. Drifting too far from being able to create and maintain those relationships, and from some familiarity with their traditions, would be highly detrimental to A and the prospects of a future richly populated with loving relatives and their shared heritage. Supporting these aspects, and acknowledging the challenges given her characteristics, is very important to A’s long-term welfare.

 

 

The Judge made it clear that she was not critical of the Local Authority for considering an option of adoption

 

  1. To be clear, there is no criticism of the making of an application for a placement order itself. There would have been scope for this complex and finely balanced argument to be made properly to the court, and for the court to consider all the aspects of the issues applicable to such a serious step in order to determine the appropriate outcome

 

However, despite it being identified once the LA final evidence was filed that it was lacking in the necessary carefully balanced analysis and argument, and the Local Authority being given further opportunities to remedy that by addressing clearly identified missing issues in addendum evidence, the requisite quality of evidence never emerged. The LA had three such opportunities, including on the first day of the hearing, and matters ended up unravelling completely during the social work evidence.

 

  1. However, what analysis there was emerged as incomplete, partial, unsupported by sufficient evidence or reasoning. ‘Permanence’ was lauded above all else, with little rationale or substantiation or research to underpin that claim and the assumptions and assertions made.

 

 

  1. What analyses there were hardly touched upon the disadvantages to A of adoption and effective severance from her birth family, or the problems posed by her diagnoses in terms of any attempts to mitigate those losses.

 

 

  1. Negative observations in relation to the family were over-emphasised based on the slightest of evidence, and positive issues for which there was ample and good evidence were hardly mentioned if at all. Whole factors that would not sit easily with the plan for adoption were almost completely ignored. It was a skewed and highly partial approach.

 

 

  1. Ultimately, such an approach not only undermines the local authority’s own case for adoption because the good and substantial evidence and analysis required by the case law is simply absent, but it does not serve the child well nor assist the court.

 

 

  1. I entirely accept that there are, sadly, many cases where the drastic and life-changing severance of legal and other forms of relationship with birth families are justified. Often it is where the incapability of family members to meet a child’s needs or the risks of significant harm are very great, and where the benefits to the child of ongoing relationships with birth family members are scanty, being of poor quality, negative impact or largely non-existent in terms of any obvious positives or likely continuation.

 

 

  1. Here, the contrast with such situations was very great, with a very large loving connected family group holding positive respectful family values, celebrating a distinct culture and heritage, highly co-operative, admitting their area of parenting failure but otherwise forming a wide group of highly functional happy secure close adult and child family members, and offering consistent positive committed loving relationships to A, and in particular with siblings, nephews, nieces and cousins who are close to A’s age.

 

 

  1. 63.   This required careful, nuanced, thoughtful and balanced analysis. Instead, listening to the social worker’s oral evidence was a painful experience. Almost none of those benefits and contrasts were touched on at all. No research was referred to in her documents or oral evidence. It was difficult to get her to focus on A’s needs and characteristics, as opposed to reciting generalised assertions about adoption. It was clear that she initially thought she had fully reviewed A’s welfare interests, even though her document was largely a cut-and-paste copy of the initial CPR with a few further paragraphs added and a slightly expanded tabular discussion of various pros and cons.

 

 

  1. The process of cross-examination increasingly revealed glaring gaps and distorted arguments. It was telling that, despite the local authority claiming that it grasped that this was a complex and unusual case and that all the relevant issues had been considered, in fact very few of the relevant complexities were set out or analysed in any document and not even in this social worker’s re-amended document. It was further telling that, when the possibility of a contact order that would help to support A’s family relationships and her exposure to her culture and heritage was raised with the social worker, her first reaction was not to consider it in terms of A’s needs and characteristics but to protest that this would narrow the pool of prospective adopters.   A prime example of the tail wagging the dog.

 

 

  1. Overall, the local authority’s evidence was an effective demonstration of confirmation bias. The virtues of the permanence and security of a ‘forever family’, and which in abstract principle I do not doubt, nonetheless were sketchily asserted and additionally appeared to blind the social workers to the need to address those specific aspects of A’s needs and characteristics that did not fit with that proposal, and prevented any real analysis of permanent estrangement from her birth family.

 

 

  1. In particular, there was no evaluation of how that would work in combination with her likely cognitive difficulties, which would undoubtedly make it far harder if not impossible for her to benefit from sparse or indirect contact, or from using indirect resources such as the internet, language lessons or photographs to keep her in touch with her heritage and her family’s native languages and practices. There was no consideration whatsoever that there would be a high likelihood of adoption realistically resulting in an effectively drastic end to A’s ability to grasp aspects of her heritage, experience the warmth and breadth of her birth family, speak and understand some words of her parents’ native languages, feel and benefit from the sense of belonging to this large loving family with rich and coherent traditions – even if she could not live with them.

 

 

  1. The local authority’s approach was starkly epitomised in the following quotation and sole rationale in the initial ADM report: ‘given A’s age the only permanency option viable for A is adoption’. This assertion was made without any supporting analysis, let alone consideration of what other options might exist and how any option does or does not meet A’s needs and welfare interests.

 

 

  1. This flawed approach begs so many questions of this local authority. How is it that adoption appears to have become a kind of orthodoxy that requires inconvenient matters to be ignored and others to be twisted into its support? Is there an endemic automatic approach to a younger child’s age which results in a simplistic tick-box response instead of a careful analysis of her particular welfare interests? What sort of positive qualities would a birth family need to offer to be able to dislodge this approach to adoption and trigger a more balanced analysis and a preparedness to consider and address the full range of options? How has this local authority not followed the clear guidance of well-known law, and so failed to provide the evidence with which to ask the court to properly determine such a drastic and serious intervention in the life of this child?

 

 

  1. Ultimately, even with the further opportunities that the local authority had following the adjournment in November plus the further enhancement of the social worker’s written efforts at the outset of this hearing, the exposure of these failings led the local authority to perceive that it had again manifestly failed to meet its obligations and thus it withdrew its second placement application at this adjourned final hearing. The necessary evidence and reasoning that would have permitted this court to carry out the difficult balancing exercise had simply not been properly provided.

 

 

  1. These observations, and the local authority’s failure to meet these requirements of well-known law, become particularly pertinent given the local authority’s fundamentally flawed application for a placement order that led to the first final hearing being adjourned.

 

 

It is clear from what is said that both the original Child Permanence Report and the amended later versions were significantly flawed. The Judge summarises the statutory guidance and reminds us of the purpose of the Child Permanence Report – this is the document that fundamentally informs the Agency Decision Maker (the senior manager at a Local Authority, usually Assistant Director or Director level) as to the relevant information that leads that Agency Decision Maker (ADM) whether or not to make a decision that adoption should be the Local Authority plan. (An individual social worker cannot decide that adoption is the plan – they can recommend it to the ADM, but it is the ADM who decides). Therefore, the information in the Child Permanence Report (CPR) must be accurate, it must be fair, it must be balanced.

 

 

  1. The Statutory Guidance on Adoption provides that information must be accurate and distinguish fact from opinion:

 

1.17. Reports should be legible, clearly expressed and non-stigmatising. The information should be accurate and based on evidence that distinguishes between fact, opinion and third party information. The information should be checked to ensure that it is accurate and up to date before it is submitted to the adoption panel.

 

 

  1. The guidance goes on to explain why the accuracy of the CPR is so important:

 

2.64. The accuracy of the CPR is essential, since it will not only form the basis on which decisions are made about whether the child should be placed for adoption but will also assist the agency in matching the child with an appropriate prospective adopter, and will be the source of the information about the child on which the prospective adopter will rely. In due course the child, on reaching adulthood, will be able to request a copy of the CPR under the AIR and may have to rely on this document as the principal source of information about their pre-adoption history.

 

 

  1. The Court of Appeal has emphasised the legal requirement for the CPR to contain an analysis of all relevant placement options, including the reasons why adoption is the preferred plan. In Re B (care proceedings: proportionality evaluation) [2014] EWCA Civ 565, [2015] 1 FLR 884, concerning a successful appeal against a placement order, Ryder LJ observed that the CPR “ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated … That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made.”

 

 

 

 

  1. In Re S-F (a child) [2017] EWCA Civ 964 the Court of Appeal highlighted the need for reasoning to be specifically related to the child concerned:

 

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for the child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

 

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.’

 

 

There are regulations – The Restriction on the Preparation of Adoption Reports Regulations 2005 AND Adoption Statutory Guidance designed to ensure that this is the case. Pivotal amongst these is that the author of the Child Permanence Report must be qualified to write one, and must certify in the report whether they are so qualified, or whether their manager who is so qualified has supervised them in the writing of it. The qualification is three years of child social work, including direct experience of adoption work.   (In short, a social worker who is in the process of learning or has no direct experience of adoption work can only write the CPR if their manager (who HAS such experience) supervises them in the writing process. And by implication, as the manager has to sign off on the report that the manager is signing to say that the report does all it should.

  1. The guidance also sets out the expectations of the role of the supervisor:

 

1.15. For those individuals who are being supervised, their work should be supervised in accordance with their particular skills, experience and development needs. It is not necessary for the supervised social worker to be under the direct line management of the supervising social worker.

 

1.16. Where reports are being prepared by social work students, independent social workers or social workers who do not have the necessary experience, the draft report should be considered and discussed during supervision and signed off by a social worker with the necessary experience before the report is submitted to the adoption panel, another agency, or the court.

 

1.18. The person who prepares the report should sign and date it and indicate how they meet the requirements of the AAR. Where the person has been working under the supervision of a suitably qualified social worker, that social worker should sign the report as well, indicating the capacity they are working in and how they meet the requirements of the AAR.

 

 

In this case, the social worker was not suitably qualified, but instead of checking the box to say that she was not and having her manager sign to certify that it had been prepared under supervision simply checked the box saying that she was qualified, which she was not.

 

  1. Page 3 of the CPR specifically asks the author to confirm that they are suitably qualified under the Regulations to prepare this report. There is a numbered footnote next to that question, suggesting that further information on that point was available to the author while completing the document. The social worker’s response was “YES”.   The social worker has since explained that claiming that she was suitably qualified was simply an administrative error, an oversight. She should have marked NO, as she does not have the requisite experience under the Regulations.

 

 

  1. When the local authority was asked at court on the first day of the November hearing whether the social worker was in fact appropriately qualified and to provide details of her direct adoption experience the local authority’s response was that she does not have the requisite experience but “was supervised”.

 

 

  1. The space provided for details of the supervisor to be given has been left blank, which boxes also appear on page 3. It has been suggested that this is because the form uses a drop-down box format and that in clicking on YES the subsequent boxes did not then appear in order to be completed.

 

 

  1. However, I note that both the social worker and her team manager provided their signatures in the relevant boxes on page 3. They would both have had the opportunity and should have seen on the same page that they were signing, that the relevant boxes in relation to the Name and Signature of the supervisor were blank, and that the social worker had wrongly confirmed that she was a qualified person under the Regulations.

 

 

  1. I also note that in his statement the Director of Children’s Services referred to two individuals said to have supervised the social worker to the satisfaction of the relevant Regulations: her service manager and her assistant team manager. He claims that the supervision involved: ‘initial planning… including identifying who needed to be seen and interviewed, reviews of previously completed CPRs to inform the process of completion of the index CPR, and discussions about the conclusions of the same.’

 

 

  1. There are no details given of the capacity of either of these two individuals to fall within the relevant supervisor category, or of which of them carried out what supervisory tasks and exactly how that satisfied the regulations. There are no notes or records provided of supervision sessions. Tellingly, there is no assertion in his statement that either of them read the report or considered its contents beyond ‘discussions about the conclusions’. Clearly, neither of them signed the CPR, even though, if supervision were being adequately conducted, they would have expected this to be asked of them.

 

 

  1. It is clearly possible that the local authority may have committed a criminal offence under section 94 Adoption and Children Act 2002 and the Preparation of Adoption Reports Regulations 2005, but I cannot conclude whether that is the case or not. I note the Director’s refutation of this accusation. This is not the tribunal in which a summary offence is tried. I have not been provided with sufficient information to assist with any safe conclusion either way, nor would it be proportionate in the circumstances of this case to conduct an examination of all the background facts and the detailed nature of the supervision said to have been provided.

 

 

  1. At the very least, this ‘oversight’ was therefore missed by four people: the social worker, her team manager, her assistant team manager and her service manager. I am driven to suspect, but cannot properly put it higher than suspicion, that this oversight may possibly have been a consequence of ignorance of the requirements, the Regulations and of this offence.

 

 

  1. Additionally and significantly, adequate supervision should have identified the numerous deficiencies in content and analysis that are now admitted by the local authority.

 

 

  1. It also remains unclear who in the local authority holds the position of agency advisor as the individual with overall responsibility for quality assurance of the CPR, and whether this document was ever seen by this individual. This again begs the question as to what checking systems are in place, and how such an inadequate report, written by a social worker who did not have the experience required by law to write such a report, was permitted to be submitted to the ADM.

 

The CPR, as well as missing significant information and a balanced analysis, contained within it assertions as though they were fact, when the LA knew that the parents disputed those assertions and were not asking the Court to make findings. That sounds complex, so let’s unpack it

 

If there’s an allegation in proceedings that daddy hit Jack with a stick, then those allegations become a fact if :-

(a)Daddy admits it

(b)Daddy is convicted of it

(c)The Local Authority invite the Court to find as a fact that it happened and the Court, having tested the evidence does so.

 

 

In the absence of (a) or (b), if the Local Authority want to be accurate in the CPR they say “There is an allegation, yet to be proven, that the father hit Jack with a stick, the father denies it saying ___________, the evidence that the LA rely on that it happened is ___________ and the Court will be asked to find this as a fact”OR “There was an allegation made on _____ about physical mistreatment, this is denied and the Local Authority accept that there is not sufficient evidence for the Court to be asked to make a finding”

To simplify even further – this is the LA having their cake and eating it. Relying on the allegation to persuade an ADM that adoption is the plan, without going to the effort of proving it. This is WRONG.

 

  1. In addition to the above acknowledgements, it is also the case that the CPR contains much information presented as fact (for example pages 18-19) even though the local authority should have been aware it was disputed by the parents and it was not pursuing findings in respect of the disputed issues. This is particularly concerning given that paragraph 2.64 of the Guidance emphasises the need for accuracy, and that a CPR is often an important and sometimes sole source of information for a prospective adopter and for the child (see 2.64 set out at paragraph 82 above).

 

It is astonishing really that this needs saying, but it clearly does. As a Local Authority, if you are putting a disputed allegation onto the balancing scales to make decisions, then you need to seek to PROVE it. If you have decided you don’t think you can prove it, or that it isn’t proportionate to ask the Court to do so, then you DON’T GET TO PUT the allegation on the scales. Put up or shut up.

 

 

The ADM doesn’t escape condemnation

 

AGENCY DECISION MAKER’S DECISION –

 

 

  1. Given the manifest failures to comply properly with the Act and the Regulations and applicable guidance and case law in relation to the CPR, it was clearly not possible for the initial ADM to have made a valid and lawful decision based upon that material (Re B (Placement Order) [2008] supra, quoted in paragraph 78 above).

 

 

  1. It is also plain that the ADM in any event in her own right failed to comply with the relevant law and guidance in the decision dated 12 September 2019. The decision is set out in nine paragraphs which summarise the background history and then concludes with a single sentence as the only analysis or rationale for the ADM’s decision: “However, given A’s age the only permanency option viable for A is adoption”.

 

 

  1. This is shockingly poor and in breach of the relevant law and guidance. In particular:

 

–         The ADM failed to consider whether the social worker was permitted to prepare the report under The Restriction on the Preparation of Adoption Reports Regulations 2005.

 

–         The ADM failed to identify any arguments for or against adoption or long-term foster care, save for A’s age, and failed to give any reason for the decision, save for the child’s age.

 

–         The ADM’s sole reason appears to amount to an orthodoxy or set policy based on age alone and showed the local authority had failed even to consider long-term foster care as an option at all.

 

–         The ADM failed to consider any of the factors in the welfare checklist save for A’s age. This excluded any consideration of A’s background and identity, the impact of her needs and developmental issues, her relationships with her relatives (not only her parents but siblings and wider family), and the value of those relationships continuing.

 

 

 

  1. The Director of Children’s Services claims in his statement that the ADM had, in fact, taken the full welfare checklist into account, but had simply failed to record that exercise. He also accepts that the key arguments for and against adoption were not articulated in the report, and concedes that these failures to meet requirements resulted in a flawed placement application. In my judgment, his concessions do not go far enough and do not even reflect the local authority’s own guidance that was in existence at the time of the decision.

 

 

Nor does the Local Authority legal department

 

   It is the local authority’s legal team who will have taken the relevant steps to issue the placement application. In doing so, the lawyer handling this case should have read the relevant documents underpinning the proposed application. This should have immediately caused the lawyer to flag concerns relating to the adequacy of the CPR and the ADM decision, and whether the ADM could have made a lawful decision on the basis of the CPR.

 

 

  1.                      This should have led to the matter being referred, if it had not been referred already, to the agency advisor for review of the documents in question.

 

 

  1. It also should have led the lawyer to refer the matter back to the social work team, service manager or other senior member of Children’s Services in order to rectify the situation.

 

 

  1. The issue of a placement application should not become a rubber-stamping exercise, but a rigorous examination of whether the legal requirements for such a serious application have been met

 

I would completely agree with this. It might to implement it properly, need an adjustment of Court timetables. A Placement Order application is a huge piece of work, and because generally the social work evidence comes in right against the deadline if not already late, a Local Authority lawyer is working frantically to get the application issued as soon as possible, so that other parties can respond and the court timetable does not get derailed. We need to make time to do what is such a critical job properly, even if that means having to seek to vary the Court timetable to give it the time it needs. Child Permanence Reports are dense documents, the application form for Placement Orders is, as any Local Authority lawyer will tell you, the absolute WORST form to fill in, you’re doing it at the same time as checking all of the final evidence and care plans. It takes more time to do right than we are able to give it. And what normally has to give there is that the task is delivered in the time you’ve got, not the time you need.

(None of this is intended to be excuses, it is context. Similar things are true at every stage of this flawed process – everyone is working to the time they’ve got, rather than the time they need. Sometimes we need to stand up and say ‘we need more time please Judge, because…’ and let the Judge decide)

 

As a result of the flaws in this case, the Court considered whether to make a wasted costs order (i.e that the Council should pay for everyone else’s legal costs)

They were ordered to pay the costs of one day of the Court hearing

DISCUSSION & CONCLUSION

 

 

  1. Appropriately, the local authority has recognised that its actions place it at risk for the costs of at least part of the three days of the November hearing. The Respondents’ costs are all met by the Legal Aid Agency, and I have taken into account their respective similar positions in defending the funds of that agency and requesting that a costs order is made against the local authority for the three days.

 

 

  1. It was suggested on behalf of the local authority that these issues should have been drawn to the local authority’s attention by others at the Issue Resolution Hearing in late September. I reject that submission. None of these flaws should have been permitted to have tainted the documents and decisions of the local authority in the first place, none of the issues are novel but are well-known aspects of statute, case law and guidance. These were the standard responsibilities of the local authority, and not of the other parties nor the court.

 

 

  1. 137.                       Counsel also, ingeniously but unsuccessfully, attempted to suggest that the court should consider that the actions of the local authority were not ‘unreasonable’ or ‘reprehensible’ as they were the result of oversights rather than bad faith.

 

 

  1. The ordinary dictionary meaning of ‘reprehensible’ is ‘deserving censure or condemnation’ and derives from the latin verb meaning ‘rebuke’. I consider that each and every error identified in the local authority’s process deserves censure and could and should have been avoided. It was unreasonable to issue a placement application based on such material and, given the nature of the underlying errors, where the law relating to the standards to expect of evidence and analysis in adoption cases should be so well-known.

 

 

  1. The starting point here is that without the numerous and egregious errors of the local authority a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing.

 

 

  1. I do not consider that it was inappropriate to propose a plan for adoption and to seek a placement order, but the method by which it was pursued and applied for was riddled with avoidable error and failure to comply with important rules and requirements.

 

 

  1. Counsel for the local authority also urged upon me the positive steps taken by the local authority since November, and that the local authority could be said to have needed to have taken some significant time to consider the issues arising at the November final hearing and so should only bear the costs of a single day. The first point is a good one, and the second fails given that the errors should never have seen the light of day or gone ahead uncorrected in the first place.

 

 

  1. I welcome and bear in mind those positive steps outlined by the Director of Children’s Services, and consider that they go some way towards mitigating the local authority’s position. I have directed that the local authority should write to inform the court of the completion of each step identified by the Director and that I have mentioned in paragraphs 124-127 above.

 

 

  1.      I note that the pressures on the budgets of hard-pressed local authorities is very great, and that any costs order deprives this local authority of funds which can be used to assist children and families in need.

 

 

  1. In the circumstances, and bearing in mind the overriding objective, although it can quite properly be said that this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days, I am satisfied that it is sufficient censure to point this out in the context of the criticisms of this detailed judgment, to take into account the positive steps that are anticipated will prevent such avoidable errors in future, and to require the local authority to meet the Respondents’ costs of one day of the November hearing. Costs will be assessed.

 

 

 

 

  1. Finally, it will be noted that I have not named any single professional employed at this local authority. The local authority, quite properly and as required by case law, is identified. However, the problems appear to be systemic and wide-ranging. The identified problems touch each element of this local authority that has become involved in this case: social work, supervision, management, decision-making, legal advice, internal training, standards and checking systems, and ranging from social worker to lawyer to Director. Accordingly, it would be misleading and would attach too narrow a focus to name any single individual.

 

 

What this judgment is NOT, is a balance of whether long-term fostering is better than adoption for children generally. Instead, it is a careful reminder that in order to make a decision that involves permanent separation of a child from the parents and their family, the evidence has to be tested, it has to be accurate, it has to be checked, it has to be fair, and that processes, guidance and caselaw that are laid down to achieve that are ignored or bypassed not only at our peril but at the expense of justice and the children that we are working to help.

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Discrimination on grounds of race – assessment of adopters

Posted on January 9, 2020 by suesspiciousminds

 

 

 

 

This is a civil case relating to a claim of direct discrimination on the grounds of race by Adopt Berkshire, an adoption agency involved in the assessment, recruitment and approval of adopters.

 

Mander & Anor v Royal Borough of Windsor & Maidenhead & Anor [2019] EWFC B64 (06 December 2019)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B64.html

 

 

 

Mr and Mrs Mander are British citizens, born in Britain and both are of Indian descent. They sought to become adopters and approached Adopt Berkshire to progress this.

 

An adoption social worker met with them and told them that Adopt Berkshire would not be progressing their assessment past the initial visit and that they would not be invited to fill in a form called ROI (Registration of Interest form).  That’s the form that progresses an expression of interest in adoption to starting the assessment process itself. Without that, there’s no assessment and thus no approval and thus no placement of a child.

 

Mr and Mrs Mander say that the social worker, Ms Shirley Popat, told them in terms that this was because they did not meet the racial profile of the children that Adopt Berkshire had available, and specifically that :-

 

 

 

 

 

 

 

 

 

 

 

(i) Adopt Berkshire only had white British pre-school children available for adoption;

 

 

 

 

 

(ii) this situation would continue for the foreseeable future;

 

 

 

 

 

(iii) Adopt Berkshire already had a surfeit of white British pre-approved prospective adopters;

 

 

 

 

 

(iv) priority would be given to white British adopters in the placement of these children as they shared the same background; and

 

 

 

 

 

(v) the chances of Adopt Berkshire placing a child with Mr and Mrs Mander were therefore remote.

 

 

 

5.Mr and Mrs Mander say that Ms Popat told them not to be discouraged from adopting entirely, as she saw no reason why they would not be good prospective adopters. She suggested they keep in touch with Adopt Berkshire and try again in a few years in case the situation had changed. She suggested they consider an international adoption from India.

 

 

 

Ms Popat and Adopt Berkshire deny that this was said to Mr and Mrs Mander.  This argument is somewhat shot in the foot, because when Mr and Mrs Mander asked Adopt Berkshire to provide written reasons for not progressing their application, Adopt Berkshire sent this:-

 

 

 

“In making this decision [not to progress you to application stage], we took into account a number of factors including:

 

 

 

 

 

◦the profile of children currently available for placement both locally and nationally;

 

 

 

 

 

◦the fact that in the 17 months since Adopt Berkshire was launched we have not had a single child of Indian or Pakistani heritage referred to us for placement;

 

 

 

 

 

◦the fact that we had recently made contact with a number of local authorities which have significant Indian and Pakistani communities and with several Voluntary Adoption Agencies and they all reported that they had a number of sets of Indian and Pakistani adopters approved and waiting placement but were experiencing a dearth of children requiring placement who would be appropriately culturally placed with these families;

 

 

 

 

 

◦the fact that there are currently many more approved and waiting adoptive families across the U.K who are hoping to achieve the placement of a child/ren of pre-school age than there are children for placement and that this therefore makes it unlikely that a child whose cultural heritage was significantly different to your own would be placed with you.”

 

 

 

7.After acknowledging that the local and national picture may change over time, Ms Loades continued:

 

 

 

 

 

 

 

 

 

 

 

“…it is hard at the current time to advise you how best to proceed regarding adopting within the U.K.; however another option that you may wish to explore is the option of adopting from India – while this is likely to be a lengthy process and may be financially stretching, it may ultimately be more likely to enable you to achieve the placement of a young child whose cultural heritage is similar to your own”.

 

 

 

If this is different to the alleged oral reasons given, it is in the hair-splitting territory. It is plain that the major (if not sole) reason for not progressing the application to a full assessment of suitability is based on race.  Note that Mr and Mrs Mander were NOT saying that they themselves only wanted to adopt a child of the same ethnicity.

 

Adopt Berkshire confirmed at the hearing that there was nothing in their discussions with Mr and Mrs Mander to suggest that they would not be suitable carers for children or suitable adopters

 

 

 

 

 

 

 

 

 

10.          The Defendants have at all times made clear that there was nothing in Adopt Berkshire’s dealings with Mr and Mrs Mander which suggested that they would not be suitable people to adopt or could not offer a loving and caring home to a child. The Defendants’ witnesses reiterated this in their written and oral evidence.

 

 

 

Mr and Mrs Mander, supported by the Equality and Human Rights Commission brought an action for direct discrimination on the grounds of race, and also a claim under articles 8, 12 and 14 of the Human Rights Act.

 

 

 

I’ll deal with the HRA aspect first, as that was quite straightforward and was dismissed.

 

 

 

 

 

108.        Mr and Mrs Mander submit that in this case the Defendants by their actions prohibited them from founding a family contrary to Article 12, which was breached in a manner that was not in accordance with the national law as it constituted direct discrimination on the grounds of race contrary to the EA. Further, they claim that because it constituted direct discrimination, it was in breach of Article 14 when read with Article 12.

 

 

 

 

 

 

 

109.        Mr and Mrs Mander have not satisfied me that the ambit of Article 12 encompasses the right to found a family by adoption of a child in all circumstances. X v Netherlands specifically holds that it does not, and that it is left to the national law to determine whether, or subject to what conditions, the exercise of the right in such a way should be permitted. Accordingly, to paraphrase Lord Nicholls at [26] of M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 WLR 637, [2006] HRLR 19 (cited at [65] of Wilkinson v Kitzinger) the Commission in X v Netherlands is saying that Contracting States are not currently required by the Convention to include within the right to found a family guaranteed by Article 12, the right to adopt a child. That is left to the national law. The manner in which the UK has determined rights relating to adoption is in the statutory framework that it has put in place by way of the 2002 Act, the Children Act, the AAR and the Statutory Guidance, and the remedies for discrimination in relation to the provision of adoption services are found in the EA. Accordingly I accept Miss Foster’s submission for the Defendants that there is no place in this case for a claim of breach of the HRA.

 

 

 

 

 

 

 

110.        For those reasons I dismiss this element of the claim.

 

 

 

In short, there is not a RIGHT to be able to adopt that is actionable under article 12.

 

 

 

Direct discrimination was, however, the central plank of the case.  Had Mr and Mrs Mander been treated (in the refusal of their wish to be assessed as adopters) in a way that they would not have been treated if they had been white, for example?   (It doesn’t seem too tricky to resolve that, but of course there was a lot of argument, because no adoption agency wants to be labelled as having racially discriminated against someone)

 

 

 

The Court found that the first stage of the claim was made out :-

 

 

 

 

 

79.          Mr and Mrs Mander case is that the Defendants directly discriminated against them by treating them less favourably than they treat or would treat others because of their race, and specifically:

 

 

 

 

 

 

 

 

 

i) From 26 April onwards, refusing to progress Mr and Mrs Mander’s application for approval as prospective adopters, and therefore refusing to permit them access to the adoption service provided by Adopt Berkshire, contrary to section 29(1) EA;

 

 

 

 

 

ii) By terminating the provision of the adoption service provided by Adopt Berkshire to Mr and Mrs Mander on 26 April 2016 contrary to section 29(2)(b) EA;

 

 

 

 

 

iii) By subjecting Mr and Mrs Mander to the following detriments contrary to section 29(2)(c) EA:

 

 

 

 

 

a) informing Mr and Mrs Mander by telephone on 31 March 2016 that they should not bother to apply to be approved to adopt because of their “Indian background”;

 

 

 

 

 

b) from 26 April 2016 refusing to progress their application for approval as potential adoptive parents and refusing to reconsider the reasons for the rejection of their application; and

 

 

 

c) suggesting in the letters of 4th May 2016 and 16 June 2016, that Mr and Mrs Mander should consider adopting from India.

 

 

 

 

 

Finding of prima facie case of direct discrimination

 

 

 

80.          In this case, I am satisfied on the evidence before me that Mr and Mrs Mander have made out a prima facie case of direct discrimination. The basis of the claim is well and contemporaneously documented. There is either no dispute that the acts complained of took place (refusing to progress Mr and Mrs Mander’s interest in adoption, refusing to reconsider their application, suggesting they adopt from India), or Mr and Mrs Mander’s account is not challenged and I have accepted it (informing them by telephone that they should not bother to apply to be approved to adopt because of their Indian background). There can be no real dispute that both contemporaneous notes and the reasons given in writing afterwards by Ms Loades and Ms Redding, being employees of Adopt Berkshire and RBWM respectively, cited Mr and Mrs Mander’s ethnicity as a relevant consideration. The defence is really on the basis of an adequate explanation for differential treatment, which the authorities make clear that I do not consider at the stage of determining whether a prima facie case is made out. Accordingly, I must find that there is direct discrimination unless the Defendants can satisfy me on the balance of probabilities that they did not discriminate against Mr and Mrs Mander.

 

 

 

Having established that there is a prima facie case of direct discrimination, the Court then have to look at what Adopt Berkshire say as to why there WAS NOT discrimination in fact.

 

 

 

Note that intention to discriminate doesn’t come into it. 

 

I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

Lady Hale in JFS put the criteria/motive question this way in [62] of her judgment:

 

 

 

 

 

“[62] … there are in truth two different sorts of “why” question, one relevant and one irrelevant. The irrelevant one is the discriminator’s motive, intention, reason or purpose. The relevant one is what caused him to act as he did. In some cases this is absolutely plain. The facts are not in dispute. The girls in the Birmingham case [1989] AC 1155 were denied grammar school places, when the boys with the same marks got them, simply because they were girls. The husband in the James case [1990] 2 AC 751 was charged admission to the pool, when his wife was not, simply because he was a man. This is what Lord Goff was referring to as “the application of a gender-based criterion”.

 

 

 

 

 

 

 

[63] But, as Lord Goff pointed out, there are also cases where a choice has been made because of the applicant’s sex or race. As Lord Nicholls put it in the Nagarajan case [2000] 1 AC 501, 510 – 511:

 

 

 

 

 

 

 

 

 

“In every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.”

 

Adopt Berkshire’s case was that Mr and Mrs Mander were rejected because the social worker and Agency were looking at the merits of assessing someone for whom they thought the eventual end point would not be likely to result in a match of a child being placed with them for adoption.  (I see the point, but common sense still seems to say to me that the only reason the Agency had thought that was because of their race…)

 

 

 

 

 

 

 

 

 

 

 

84.          What were the factual criteria that Ms Loades applied in rejecting Mr and Mrs Mander from proceeding to ROI? Ms Loades agreed in cross- examination that she selected potential adopters to progress at the IVR Meetings who she felt were mostly likely to succeed to placement. This was also the evidence of Ms Popat, it is reflected in Ms Loades letter of 4 May and Ms Redding’s letters of 14 June and 18 August 2016. I remind myself that was summarised in Ms Redding’s 18 August 2016 letter as follows: “Given the current position regarding the availability of children for adoption within the UK, Mrs and Mrs [sic] Mander are, for the reasons outlined in my previous letter, unlikely at this time to be able to achieve the placement of a child of Indian, Pakistani or mixed heritage. In addition there is currently a significant surplus of already approved White British/European adopters within the UK who are seeking placement of a child aged under four years. Therefore it is also highly unlikely that Mr & Mrs Mander would be able to achieve the placement of such a child however open they are to considering this placement option”. Most importantly, it is also the Defendants’ pleaded case. They plead that they decided not to progress Mr and Mrs Mander’s expression of interest in being approved to adopt any further, because it was adjudged that there was insufficient likelihood at that time that a child or children would be matched and subsequently placed with them for adoption within a reasonable timescale, and in reaching this decision, they took into account the profile of children who required placement.

 

85. Miss Foster in her skeleton and closing submissions has sought to widen the Defendants’ pleaded case.

 

 

 

 

 

 

 

86.          Firstly, she submits for the Defendants that targeted recruitment is condoned in the Statutory Guidance (at paragraph 3.6 of Chapter 3) as a legitimate method by which to recruit potential adopters who can meet the needs of waiting children and, in particular, the needs of harder to place children. I agree. However, in my judgment that guidance is about encouraging applications from a wider pool of prospective adopters and increasing the number of available adopters from particular communities, not about turning away applications on a summary basis, outwith the published processes, from prospective adopters who meet the eligibility criteria but who Adopt Berkshire consider on an Initial Visit do not, or might not, meet further unspecified and unpublished criteria.

 

 

 

 

 

 

 

87.          Secondly, she submits that whether a prospective adopter can meet the needs of harder to place children lies within the discretion of experienced social workers, such as Ms Popat and Ms Loades. Although Mr and Mrs Mander say that they were willing to take sibling groups and look outside their own ethnicity, Miss Foster submits that it is for Ms Popat and Ms Loades as experienced social workers to interpret that and “filter it through the lens of their professional judgment” to decide as a matter of judgment and discretion whether they fitted within the Defendant’s criteria.

 

 

 

Her Honour Judge Clarke rejected this.

 

88.          I do not accept this submission. It is clear from the statutory framework and the AB Guidance that whether or not Mr and Mrs Mander were suitable to be approved as prospective adopters should be a matter for information gathering at the post-ROI pre-assessment Stage 1, and for assessment by an Adoption Panel at Stage 2. Whether Mr and Mrs Mander could meet the needs of harder to place children should be a matter for assessment only after an Adoption Panel has approved them, at the matching stage. Ms Loades in cross-examination accepted that:

 

 

 

 

 

 

 

 

 

i) part of the next stage of the process, once an ROI form was filed, was to work with potential adopters to see if they were willing to broaden the scope of the children that they might consider adopting, whether that was in terms of age, or higher needs, or differing ethnicities, or taking sibling groups;

 

 

 

 

 

ii) the ROI application form was much lengthier and contained much more in-depth and detailed information than would have been gleaned by a social worker at the Initial Visit.

 

 

 

89.          Accordingly, although the motive for the decision-making may have been to try and put forward prospective adopters who Ms Loades and her team considered would provide a good match for children waiting for adoption, I do not accept that the ability to meet harder to place children was a factual criterion at this stage, as Adopt Berkshire did not have the information properly to assess it. I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

 

 

…I am satisfied that the factual criterion which was given overwhelming priority in that decision, and the later decision not to reconsider that decision at the round-table meeting, was Mr and Mrs Mander’s ethnicity.

 

 

 

 

 

 

 

 

 

99.          The ‘crucial question’, as Lady Hale put it in JFS, is whether Mr and Mrs Mander received less favourable treatment by being (i) refused to progress to ROI; (ii) terminated from the prospective adopters approval process (and so the adoption service of Adopt Berkshire); and (iii) subjected to the pleaded detriments; on the grounds of race, or for some other reason. The Defendants have not satisfied me to the civil standard that Mr and Mrs Mander received this less favourable treatment for some other reason and so they have not displaced the presumption of direct discrimination arising from Mr and Mrs Mander’s prima facie case.

 

 

 

 

 

 

 

100.        For those reasons I find that the Defendants directly discriminated against Mr and Mrs Mander on the grounds of race, as pleaded.

 

 

 

Damages were set at £60,000.

 

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Relinquishing a relinquishment

Posted on October 9, 2019 by suesspiciousminds

 

There’s an unofficial competition in this blog for ‘the worst case of the year’ and although it is only October, I think it may be hard to find one worse in the next two and a half months.  It is an unwelcome award and nobody tends to give an acceptance speech for them, it is more “I’d like to blame the following for this…” than a sobbing Gwyneth, and certainly not a Sally Field “You…like me”

 

“Relinquish” in this context means the decision by a parent that they cannot care for their child and would want a Local Authority to arrange for the child to be adopted – consensual adoption would be another way of putting it. I don’t really care for the word ‘relinquish’ myself, but we don’t seem to have settled on a better word yet.

 

Anyway, this is a case in which parents who had four children found themselves with a fifth on the way (at a time when they appeared to be in the midst of a separation) and decided that adoption was for the best for the new baby.  They asked the Local Authority to arrange this and the appropriate steps were taken, and prospective adopters were found who were willing to foster the baby during the process.

 

So far, everything is fine.

 

The problem arose when the parents changed their mind about adoption, and what happened then.

As this is a judgment about a Welsh case, the numbering of some of the statutory provisions may be slightly different to the English ones, but once you square the number of the section of the relevant Act, the wording is the same.

Foster carers v A, B & A Welsh Local Authority [2019] EWFC B52 (27 June 2019)

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B52.html

 

The case was decided by Francis J

 

5                     It is important that I record from the outset that Mr Boothroyd, on behalf of the local authority, has made a complete, fulsome and obviously well-meant apology for the failings of the local authority in this case.  I hope that in due course the carers and the parents will be able to accept that apology, for without the failings of the local authority these proceedings would not, in my judgment, have been necessitated.  Whether, and if so, to what extent proceedings are later taken against the local authority is not a matter for me – or certainly not a matter for me at the moment.  I do tentatively suggest, however, that if any proceedings against the local authority are taken at a time when I am still a judicial office holder, it would be appropriate for such applications to be heard by me.

 

6                     I said at the outset of these proceedings, and it is worth me repeating now, that the human misery in this court is palpable.  From everything that I have read and heard, although I have heard no oral evidence, it seems obvious to me that the applicants and the parents are all thoroughly decent people who all wish the very best for A, with whom this court is concerned.

 

7                     In circumstances which I shall shortly relate, these two decent couples have found themselves pitted against each other in litigation which none of them could have wished for in their worst nightmares.  In short, the position can be described as follows, although I shall relate it in more detail shortly.  Because the birth parents already had four children between them, and because at the time when it was anticipated that A would be born they had personal difficulties and had briefly separated, they formed the conclusion, at least for a time, that it would be better for them, their children, and most particularly for A, if they were to relinquish her for adoption.  It is hard to think of a decision, as a parent, that is more difficult to make, but I am completely persuaded from everything that I have seen and heard that they decided to relinquish A out of love for her and the desire to do the best for her.

    …When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that social worker as being for the best, and the local authority put in place proposed adopters from birth.  In my judgment, they had a duty to discuss this with the mother, in fact with both parents, in detail, before accepting the position rather than actively encouraging them to go through with the adoption.  The Adoption Agencies Regulations 2005, and the Welsh equivalent, pursuant to s.53 of the Adoption and Children Act 2002 mandate the local authority to provide pre-birth counselling to the mother, which would include whether the mother could care for the child with support or whether there were members of the family who could care for her in the short or long term.  Following the birth, the social worker must counsel the mother to see if she still wanted to the child to be adopted.  At the first statutory review, consideration should be given to whether there still remains a chance that the child will return home.  The local authority must do whatever it can to ensure that the child is brought up within her birth family if at all possible.  Prospective adopters, who are selected to accept a relinquished baby from hospital, should be informed they will need to be robust because of the possibility that the parents may change their minds.

The child has lived with the prospective adopters since she was 3 hours old, and had recently had her first birthday.

 

Leading up to the difficulties, around three months after the birth of A

24                 On 25 September 2018, the mother met with the guardian to sign the relevant consents to relinquish A, but due to the mother’s reservations the guardian advised the mother not to sign the consents.  In my judgment, this event on 25 September 2018 is a critical event.  The following day the guardian sent an email, in which she recorded that she was unable to have the consent form signed as it was, and I quote, “Clear that the parents want A to be returned to their care.  They feel circumstances have changed since relinquishing.”  The guardian wisely advised the parents to seek legal advice.  I repeat that this was 25 September 2018, about nine months ago.

 

25                 A contact recording on 5 October 2018 notes, and I quote, “Whilst the mother was cuddling A she whispered to her, ‘I’m going to get you back’, before repeating, ‘Mummy is going to get you back.’”  On 8 October 2018, the social worker recorded that the mother said that she felt that giving A away was a mistake and that she was due to see her solicitor on Thursday.  There is a great deal more in the guardian’s chronology, but what is abundantly clear is that it was only a short time after the birth that the mother, and then, in due course, supported by the father, showed increased anxiety about her decision and increased reluctance to let A go.

 

It was clear by this stage that the mother was having significant doubts about A being adopted.

 

26                 It is evident, and Judge Garland-Thomas so found in the care proceedings to which I will shortly refer again, that in October 2018 the mother was informed by a local authority social worker that if she changed her mind an assessment would need to be carried out which would involve the other children.  This was as devastating for the mother as it was incorrect.  It was devastating because it terrified the mother and, I dare say, the father when she relayed it to him that further local authority involvement with their family would now ensue, with all the risk to the other children that they had been through already, as I’ve recounted above.

 

27                 It is completely evident to me that the birth parents became frightened that an inquiry would now follow into their capacity to care for the four children already at home with them — certainly three of them, one of them I dare say being above the relevant age.  The mother was understandably concerned about previous local authority involvement.

 

28                 Judge Garland-Thomas found that by March 2019 both parents had indicated, reluctantly, that they agreed that A should be placed for adoption.  Judge Garland-Thomas found, however, that on the way back from court on 3 April 2019, the mother disclosed that she did not agree with the plan and that she wanted A back in her care.  It was this comment of the mother’s that persuaded the local authority that they should issue care proceedings.  Judge Garland-Thomas found, and it is obvious to me that she was correct in this finding, that the placement of A shortly after her birth as a foster to adopt placement was not one which had any legal foundation.  It is accepted that the parents agreed accommodation under s.76 of the 2014 Act, but there was no compliance with other legislative requirements.

 

The parents withdrew their consent to adoption.  (it is not clear as to whether they formally withdrew their consent to section 20 foster care accommodation or were informed that they had the legal right to do this)

The Local Authority issued care proceedings for A.  That seems, to me, to be a sledgehammer approach but in the interests of fairness there probably wasn’t any other “legal” mechanism for resolving this.  (the Court can make all sorts of useful declarations under an Adoption application, but an adoption application could not be made).  I’d like to know more about what attempts were made to resolve matters via conversation and social work and possibly legal advice for the parents, but we just don’t know from this judgment.  So if the LA felt that a Court should make the decision as to whether A would go home to parents or stay with the current carers, that was the only legal route for doing so.  (The question of whether it was necessary for the Court to make such a decision is a different matter)

I’m also not sure about threshold, and it turns out that my uncertainty was echoed by two Judges.

 

32                 At the first directions hearing within the now issued care proceedings, it was evident that threshold was disputed.  The local authority sought to rely on the likelihood of emotional harm and neglect arising from the fact that A was relinquished at birth and there had been no contact between the parents and A since October 2018.  Judge Garland-Thomas found herself having to grapple with the relevant date for threshold.  It transpired that the local authority had pleaded three different relevant dates.  Their initial threshold document pleaded the relevant date was 4 July 2018, being A’s birth date.  On behalf of the local authority, this was abandoned by Mr Boothroyd at the hearing before Judge Garland-Thomas and the second threshold document dated 24 May 2019 pleaded the relevant date as 3 April 2019, the date on which the mother requested that A be returned to her care.  Later, in submissions, Mr Boothroyd on behalf of the local authority suggested that the only feasible relevant date could be the date on which the mother originally changed her mind, namely about 25 September 2018. 

 

33                 Judge Garland-Thomas found that it is clear to her that the only date which could possibly be the relevant date is A’s date of birth, 4 July 2018.  She found that the submission that the relevant date is either 3 April 2019 or possibly 25 September 2018 is not sustainable.  On each of those dates A remained in local authority care, where she had been since 4 July.  The judge found that any date other than 4 July 2018 is therefore an artifice seeking to place some blame on the parents for their change of stance.

 

I’m not at all convinced that a parent lawfully exercising their statutory right to change their mind about giving a child up for adoption (particularly when papers had not been signed) gives rise to a likelihood of harm to that child attributable to the care given by the parents not being what it would be reasonable for a parent to provide.

 

36                 The judge found, in paragraph 28 of her judgment, that it would be necessary for the local authority to show, on any of the dates proposed, that there is a lack of care being provided by a parent which gives rise to threshold.  The judge said that she was satisfied, and she so found, that the local authority cannot establish that A has suffered, or that she is at risk of suffering, significant harm attributable to the parents as at any relevant date.  The judgment of Judge Garland-Thomas, therefore, brings the public law care proceedings to an end.  The application for a care order has been dismissed and the care proceedings now will formally end today with the handing down of her judgment

 

There might be a scenario, when the reasons for relinquishing in the first place obviously and clearly give rise to a likelihood of harm if the child is at home with the parents, but just changing their mind isn’t it.

Judge Garland-Thomas, correctly in my judgment, concluded that when the local authority proceeded on the basis of a foster to adopt placement they did not have in place the legal framework to enable them to do so, and care proceedings should have been issued earlier than they were.  It was completely clear by at least 25 September 2018 that the parents were equivocating about their consent to adoption.  There is a duty on this local authority to support and assist parents in the position that these parents were in, and I have already set out the relevant Adoption Agencies Regulations that apply here in Wales.

 

38                 Instead of providing that support and counselling, the local authority actively encouraged the parents to proceed along the adoption route, and even, albeit implicitly rather than explicitly, allowed the parents to feel that failure to continue to relinquish A for adoption could give rise to an inquiry in relation to the other children.

 

39                 Mr Boothroyd on behalf of the local authority, has referred me to a famous but now somewhat old lecture given by Lord Mackay of Clashfern in1989, when he delivered the Joseph Jackson memorial lecture.  It is to be remembered that 1989 is the year of the Children Act, albeit it that did not come into force in 1990 or maybe even 1991.  During the course of that lecture, Lord Mackay said this,

 

“The integrity and independence of the family is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in the law.  Accordingly, unless there is evidence that a child is being or is likely to be positively harmed because of a failure in the family, the state, whether in the guise of a local authority or a court, should not interfere.”

 

40                 The lecture is to be found reported in New Law Journal vol 139 at p.505.  The quoted paragraph being at p.507.

 

41                 Mr Tillyard in sensitively but, if I may say so, in characteristically bold fashion, criticises the local authority.  He lists inter alia the following failings:

 

42                 1.  When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that local authority to be for the best, and the local authority put in place the proposed adopters from birth.

 

43                 I agree with Mr Tillyard’s submission and so find that they had a duty to discuss this the parents in detail before accepting the position, rather than actively encouraging them to go through with the adoption.

 

44                 2.  The local authority should have permitted the mother time to reflect on her decision to relinquish A following the birth, rather than asking her to leave hospital within three hours of A being born.

 

45                 3.  The applicants, that is the carers, had not been approved as foster carers, and so A should not have been placed with them from birth.

 

46                 I wish to make it completely clear that in saying this I do not criticise the carers at all. I criticise the local authority.

 

47                 4.  Once A was placed with the carers, the local authority took far less interest in the mother’s welfare than they should have done.  It took them some three weeks before they even organised contact.

 

48                 5.  The local authority was placed on notice by the guardian in September 2018 that the parents’ consent was likely to be in issue.

 

49                 In my judgment, the local authority should have fully investigated this as soon as it became evident to them.  That was their clear duty.  The local authority told the mother that once she signed the papers for adoption in September or October there would be a final contact session.  The mother was not aware, because nobody told her, that she could have requested ongoing contact.

 

50                 It is clear that, had the local authority carried out its statutory duties pursuant to statute and regulation, from at least 26 September 2018, these proceedings would not be happening. It is overwhelmingly likely that had that action been taken last September, as I have said just over nine months ago, the parents would have been rehabilitated with A and the carers, however sadly, tragically and reluctantly, would have conceded this.  It is almost beyond belief that we are now some nine months later.  Who can possibly blame the carers now for bringing the applications that they do, both within wardship proceedings and for seeking leave to bring the adoption application?

 

 

As a side note, the Judge noted that the mother and father, who stood shoulder to shoulder and had absolutely no conflict between them were represented separately.  This does seem to have become simply the de facto norm position rather than anyone turning their mind to an actual conflict or the genuine possibility of a conflict.  The Judge made remarks which may have wider significance

51                 The mother and the father have each been separately represented in these proceedings before me.  I questioned the need for this; not out of any sense of criticism, but because it seems to me that they stand together shoulder to shoulder in this application.  Of course, as I have recounted above, there was a time when they were separated and that separation appears to have been a significant part, although not the only reason, for the decision to relinquish the baby.  I can well understand that that led people to think that they should be separately represented, however, when questioned about this the best answer that I was given as to the reason for separate representation is that this is what normally happens in public law care proceedings.

 

52                 As I have said, I do not intend to and do not criticise either of the birth parents nor any of the legal representatives for the decision for separate representation.  I do, however, tentatively suggest that if it is obvious to advocates that two parties to proceedings have identical cases, ambitions and evidence, attention should be given to the possibility of single representation.

 

Moving on

 

instead of accepting the facts, the local authority proceeded, as I have said, as if consent was still forthcoming.  I am the first to recognise that local authorities work under intense pressure of work and in circumstances where funding has been persistently and repeatedly reduced.  The pressure on local authority social workers and lawyers is often intolerable.  However, the local authority should not, and cannot, make the mistakes of the kind that have been made by this local authority in this case.  I have already used the words “human misery” above, and I repeat those words now in the sense that the human misery caused by the failings of this local authority are almost too much to bear.

 

55                 Moreover, and in any event, the cost in pure monetary terms of these proceedings, and of any likely proceedings that may in due course be brought against the local authority, will far outweigh any possible savings that could have been made by the inadequate attention that was given to this case.  It is not my task in the course of this judgment, least of all when I have heard no oral evidence, to blame individuals.  Whether this is the failure of one or two individuals in the local authority, or a systemic failure is not something that I can or should comment on in this judgment.  I can only hope, however, that there will be a thorough review by those at the top of the legal department of this local authority to consider what failings were made, and how steps can be put in place to make sure that they can never be repeated.

 

56                 It is clear to me that the carers of A are thoroughly decent people, who have thought of her arrival into their lives as the fulfilment of a dream.  To have that dream taken away from them, as these proceedings invite, is to heap upon decent people misery of a kind that is completely unacceptable.

 

57                 For the birth parents who have pleaded for the return of their child for many months, they have had to endure many months of misery, litigation, and what can probably only be described as hell.  It is, if I may say so, a tribute to the birth parents and to the carers that they have sat in court in close proximity and they continue to offer each other support.  I can only express the hope that one day A will realise that she has not two, but four, wonderful adults in her life.

 

 

The carers were asking the Court to deem that they had the right to make an adoption application, or failing that, to grant them leave to make an adoption application. That was the only legal route they had, if they wanted A to remain with them.  The Court was against that, without criticising them for pursuing it.

 

    Mr Momtaz properly recognises that if A was placed with the carers as foster carers rather than prospective adopters, as I find to be the case and he has properly conceded, then he must apply for leave for them to make an adoption application.  He contends that they should be given leave.  In para.30 of his first skeleton argument he identifies the correct principles as follows:

 

  1. The welfare of the child was a relevant, but not the paramount, consideration.
  2. Another relevant consideration is whether the proposed application has a real prospect of success.
  3. He refers me to the judgment of Wilson, LJ, as he was, who indicated his view that the requisite analysis of prospects of success will almost always included the requisite analysis of the welfare of the child.

 

74                 However, I am clear that this does not permit me, and still less does it encourage me, to draw up some sort of balance sheet between the competing debits and credits of these two decent couples.

 

75                 It is of course the case that A has bonded with her carers, who, as I have repeatedly said, have provided her with an unquestionably good level of love and care.  Within the context of her own young world, I have no doubt that A regards the carers as her parents.  Mr Tillyard submits, and I accept, that I have to weigh this against the rest of A’s life.

 

76                 What is the right of this court to terminate A’s right to family life with her family – by which I mean her birth parents and siblings?  The right of the state to interfere in A’s young life does not, in my judgment, exist.  Judge Garland-Thomas has dismissed the care proceedings and there are no longer any public law proceedings on foot.  The carers, as I have said, are temporary foster parents.  So to describe them will appear to them, I know, to be the deepest of insults.  I do not describe them in this way in any pejorative or critical sense, I am merely using the language of the statute to define the legal position: they are foster carers, and the birth parents are the birth parents.

 

77                 Mr Momtaz concluded his excellent written submissions with a short but, I am certain, correct proposition that the applicants, the carers, only want what is best for A.  He then says that they want the court to be able to make an informed and balanced decision as to her welfare.  The fatal flaw with Mr Momtaz’s submissions, in my judgment, is that I do not get to that welfare stage.

 

78                 Mr Momtaz asks why A should be introduced to the care of her biological parents.  In my judgment this is the wrong question.  The correct question is why A should be prevented from being in the care of her biological parents, when this is precisely what her biological parents want.  I do not for a second question the proposition that what the carers want is what is best for A.  The phrase “what is best for” is emotive and implies all sorts of subjective tests.  I am driven to make my conclusions based on the law.  The law is that adoption is a process of last resort unless consent from the parents is forthcoming.  Everyone in this case recognises that the consent of the parents is not forthcoming now, if it ever was.  There is no material evidence on which I could base a finding that the consent of the parents should be dispensed with.  My task is to find whether the carers have a reasonable prospect of success in their adoption application.

 

79                 With the care proceedings having been dismissed, there is no basis on which I could find that the birth parents are other than, to use the language of family lawyers, good enough parents

 

 

And the application was dismissed, meaning that plans were put in place for A to return to the care of her parents

 

81                 I am driven to the conclusion that the carers have no reasonable prospect of success in their adoption application.  Indeed, I am driven to the conclusion that it is bound to fail.  Accordingly, there is no basis on which I can give them permission to make the application.

 

82                 This leads me to the most painful and difficult debate as to how now to reintegrate A into her birth family.  With exceptional kindness, love and understanding, the carers have offered, even in the face of the prospect of losing their application, to do all that they can to help to integrate A into her birth family should they lose this application, as it is evident to them that they now have.  Should they change their mind in relation to this, nobody, least of all me, would criticise them.  If, however, after a period of contemplation following this judgment, they feel able to continue in this offer, then I know that the birth parents and this court would be grateful to them.

 

83                 It may even be, and I express this very sincere hope, that they can play a part in A’s life as she grows from the toddler that she now is into the girl, and the woman, that she will become.  That is, of course, not a matter for this court but a matter for the four individuals who have patiently listened to this case for some three days.

 

84                 In my experience as a judge in the Family Division I have rarely, if ever, seen such decent accommodation by individuals, of the horrible circumstances in which they all find themselves, and I end where I started by thanking all four of them, and express the hope that the goodwill seen by me in this court will continue, not just in the days and weeks to come, but in the years and decades to come.

 

85                 Accordingly, I therefore dismiss the application for leave to bring an adoption application, and I will dismiss the wardship proceedings.

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ADMs apple

Posted on May 9, 2019 by suesspiciousminds

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.

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