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Category Archives: adoption

Notification of fathers or family in voluntary adoption cases

 

 

 

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.

 

Adoption as orthodoxy

 

 

 

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.

Discrimination on grounds of race – assessment of adopters

 

 

 

 

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.

 

Relinquishing a relinquishment

 

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.

ADMs apple

 

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.

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

 

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

 

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

 

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

 

Set-up

 

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

 

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

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

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

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

 

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

 

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

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

 

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

 

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

 

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

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

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

 

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

 

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

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

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

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

 

The conclusion

 

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

 

Conclusion

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

 

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

 

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

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

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

 

 

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

 

 

 

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

 

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

 

 

Separating twins

 

 

There’s a notorious study from the 1960s, in which an American organisation, the Louise Wise Adoption Agency under the request of a child psychologist, Peter Neubauer, placed twins in separate adoption placements, with a number of different twin pairs, so they could be followed up by psychologists in later life to see whether they, as adults, had similarities (which would give credence to nature / genetic factors being the most dominant) or differences (which would give credence to nurture/environmental factors being the bigger influence on children). It’s the sort of thing that makes us shudder now.  And rightly makes us think that separation of twins is a huge, huge life-changing decision, never to be made lightly.

 

This case isn’t as bad as that, because the separation came about more by a combination of incompetence, lack of thought and dogma that adoption is the best thing always even if it means splitting twins, rather than just carelessly using children as unwitting experiments, but it is still bad.

 

Readers may remember Keehan J opening a can of judicial whup-ass on Herefordshire just before Christmas. After I finished writing THAT post, I found this judgment, which….well. You’ll see.

BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/76.html

 

1.I am concerned with two children, BT and GT who are twins who were born in 2010. It is almost impossible to imagine the circumstances in which it would be considered appropriate to separate twins and place them for adoption by different prospective adopters. This is, however, what occurred in this case and I have before me an application by a couple, whom I shall refer to as A and B, to adopt BT and an application by a single carer whom I shall refer to as C, to adopt GT.

 

 

2.As I shall set out in some detail, I am satisfied and find that the court is in the position of considering applications to adopt the twins in two separate homes because of the incompetence and serial failings of the local authority, Herefordshire Council, and the egregious behaviour of some of its former staff.

 

  1. The failings of this local authority have been utterly appalling. Whilst I accept the assurances of the director of children’s services and of the assistant director that significant and substantial reforms will be made and effected, no child should ever again be cared for in the manner BT and GT have had to endure at the hands of this local authority nor suffer the woeful lack of rational care planning. Further no prospective adopter should ever again have to endure the treatment meted out to A, B and C in this case.

 

This was a case in which twins born in 2010, were made the subject of Care Orders and Placement Orders (authorising them to be placed for adoption) in 2015 – the plan approved by the Court at that stage being that the Local Authority would search for an adoptive placement for the twins together for nine months, and if one was not found to search for a long term foster placement for them together.

 

 

 

 

22.On 19th March 2015 HHJ Hooper QC made all five children the subject of care orders and made placement orders in respect of BT and GT. Their court approved care plans provided for them to be placed together with a search being made for nine months for an adoptive placement and if the search was unsuccessful the following three months would be devoted to seeking a long-term foster placement for them together. There was no question of the local authority proposing, still less the court approving, a plan for the twins to be separated and placed separately whether in adoptive placements or long-term foster care.

 

 

23.On 10th April 2016, however, a team manager made the decision to place the twins separately for adoption. This plan was endorsed by a LAC Review held the following day. I shall return to consider these decisions in greater detail later in this judgment.

 

We aren’t given a huge amount of background as to the decision to make Care Orders in 2015. We know that the twins father was convicted of multiple sexual offences against children and that he is also serving a 21 year prison sentence. (para 5) and we know that 5 children were removed from the mother and made the subjects of Care Orders and that there were issues of neglect, domestic abuse and alcohol abuse.(paras 17-22)

 

The Judge, Keehan J, was faced at this hearing, with applications by two different adopters to adopt one of the twins each. By the time of the hearing, the children had been in those placements for over a year. The Judge had to decide whether to grant the adoption orders, meaning that the two children would permanently live apart, or to refuse them and move the children from those separate placements into presumably a foster placement together. Understandably the Court was more than vexed at being placed in this position after the event, when it would have been very unlikely to have sanctioned separation of the twins in the first place.

 

Let’s look at why that happened.

 

As we know, the social work team manager took the decision on 10th April 2016 that the children should be placed separately for adoption. Their foster placement, a joint one, broke down on 28th April 2016.

 

 

 

26.The allocated social worker undertook a sibling attachment assessment. The report, approved by the then team manager, is dated 7th July 2016: some three months after the decision had been made to place the twins separately for adoption. It is asserted by the local authority that the social worker, whom I shall refer to as D, gave an oral report on this issue but I do not know when nor to whom this oral report was given. Quite astonishingly and wholly contrary to good social work practice, there is no note or minute of the manager’s decision made on 10th April. Therefore, I do not know what material he considered when making his decision and I do not know the reasons or basis for the same. Thus, I do not know whether he considered the oral report of D. Moreover, I have had no explanation as to why it took D three months to write up her assessment.

 

 

27.I will return to this so-called assessment later in this judgment, but I note in the summary of her report D asserted:

 

 

 

“Having considered the legal, policy, moral and best practice guidance, it is essential that GT and BT have the opportunity of an adoptive family.

 

GT and BT’s care plans have remained to be one of adoption (jointly placed) for a considerable period of time. Over the period of 12 months, family finding attempts have not been successful.”

 

This does not reflect the court’s approved care plan which was for a 9-month search for an adoptive placement together to be followed, if unsuccessful, a by three-month search for a long-term foster placement together. I have been given no explanation as to why or how D in her assessment completely misrepresented the care plan: whether it was deliberate or just an error I do not know.

28.I am satisfied that the prospective adopters were unaware of the flawed decision making process relating to the separation of the twins until these proceedings seeking adoption orders in respect of BT and GT had been commenced.

 

GT was placed with prospective adopters in March 2017, BT in May 2017. The Local Authority ended contact between them, there being just two sessions of contact for twins (aged at that time seven) in a YEAR.

 

 

 

35.They did not then see each other again for seven and a half months until there was a contact visit on 27th October 2017 and then no contact for over four months until a visit took place on 4th March 2018. I do not understand how, why or when the hugely important decision was taken to so severely curtail, indeed deny, the children an ongoing relationship once they had been placed for adoption. For the avoidance of any doubt, it was the local authority which determined this level of contact. I make and intend no criticism of the prospective adopters.

 

 

The Local Authority accepted a large catalogue of failings at the Court hearing

The Local Authority: Actions and Failings

44.The admitted failings of the local authority which led to breaches of BT and GT’s human rights and those of the prospective adopters are set out in Annexe 1 to this judgment. These admitted failings are supplemented by further admissions of failings by the local authority, together with notes of the actions taken by or to be taken by the local authority to prevent, or at least, ameliorate the future risk of such failures of the system and of social work practice occurring. This schedule was prepared by Liz Elgar, the assistant director of children’s services and is set out in Annexe 2 to this judgment.

 

 

45.The admitted breaches of human rights and the schedule of failings of the local authority are extensive and grave. They relate to the whole operation of children’s services in Herefordshire. They are both systematic and the fault of individual social workers, team managers and line managers.

 

 

46.This said I commend the approach taken in this case by the new management team of children’s services, including in particular the Director, Chris Baird, and the Assistant Director, Liz Elgar, for the open and forthright manner in which they have responded to the divers criticisms made. I am reassured by their expressed commitment to a root and branch reform of children’s services in Herefordshire and a commitment to ensure that far more robust systems are in place to ensure compliance with good social work practice.

 

 

 

  1. The breaches of human rights may be summarised:

 

  1. i) a failure to undertake a thorough analysis of the need to change the care plans for the children and a failure to consider appropriately the consequences of separating the twins;

 

  1. ii) a failure to disclose in full detail the needs of, the challenging behaviours of and the past life experiences of BT or GT to their prospective adopters;

 

iii) a member of the social work team deleting references to the children’s challenging violent behaviours from the Child Permanence Reports (‘CPR’) and the Adoption Support Plans;

 

  1. iv) the wholly unmeritorious decision and issuing of a s.35(2) notice to remove BT from his placement with A and B;

 

  1. v) the undue stresses and strains caused to the prospective adopters by:

 

  1. a) the local authority’s flawed decisions; and

 

  1. b) as a result, these prolonged court proceedings which have had an adverse impact on BT and GT’s experience of family life;

 

  1. vi) the failure to consider properly the alternative plan for placing BT or GT in long term foster placements and to adhere to the court approved care plans;

 

vii) the failure to hold adoption reviews rather than LAC reviews (adoption reviews have an entirely different mandatory criteria to consider than LAC reviews: see Adoption Agencies Regulations 2005, regulation 36); and

 

viii) the failure of the Independent Reviewing Officer system to take any steps to secure any cogent care planning for the children and/or to protect them from the consequences of flawed and/or ill-considered decisions.

48.The schedule of supplemental failings set out in Annexe 2 may be summarised as follows:

 

 

 

  1. i) a failure in the original care plans to set out what the local authority would do if a placement together could not be found after 12 months;

 

  1. ii) a lack of management oversight;

 

iii) a failure to follow the court approved care plan to a correct conclusion;

 

  1. iv) a failure in the decision-making process to place the twins separately for adoption;

 

  1. v) the failure to acknowledge the significance of maintaining the legal sibling relationship of the twins;

 

  1. vi) the failure to acknowledge the legal relationship between BT and GT and their older siblings;

 

vii) the failure to record the reasons why a manager made the decision to place the twins separately for adoption on 10th April 2016;

 

viii) the failure of the LAC review on 11th April 2016 to consider pursuing a plan of long term foster care or commissioning further expert report(s) on the issue of placing the twins separately;

 

  1. ix) the failure to promote contact between the twins once they had been placed for adoption;

 

  1. x) the failure in applying full and accurate information in the CPRs and Adoption Support Plans including the adoption team manager wrongly and inappropriately deleting information about the twins challenging behaviours;

 

  1. xi) the failures of the IROs to take any steps to oversee and/or challenge the local authority’s decisions;

 

xii) the failure of the ADM decision making process, namely to fail to consider the impact on the children throughout the whole of their lives of separating them; and

 

xiii) the failure of the local authority, as a result of poor record keeping, to provide accurate evidence to the court.

49.Most regrettably all these admitted failures were not the end of this long litany of errors and misrepresentations. On the second day of the final hearing the local authority discovered there were documents and records, which contrary to previous orders and/or the local authority’s general duty of disclosure, had not been disclosed to the court or to the parties. When the disclosure was made it amounted to some 200 pages. I gave the parties the whole of the following day to read and digest the documents disclosed and to take instructions.

 

 

50.It caused the prospective adopters considerable distress to discover that within this disclosed material were matters relating to the children which had not previously been communicated to them by the local authority nor had it been communicated to the adoption agencies supporting the two sets of prospective adopters. [REDACTED TO PRESERVE CONFIDENTIALITY].

 

 

51.The emotional pressure on the prospective adopters was great enough without the added burden of having to receive and cope with the new information revealed. I do not understand the explanation offered as to why this material had not been disclosed earlier, other than it resulted from yet another error by an employee of the local authority. I received no explanation as to why the information revealed had not been previously communicated to the prospective adopters or their supporting adoption agencies.

 

 

However, over and above that, emerged the actions of the social worker who had written the sibling assessment (after the conclusion of proceedings) that formed the basis of the decision to separate these twins

 

 

 

52.It then emerged that the then social worker, D, the author of the sibling assessment had misquoted the opinions of Dr Mair Edwards, a consultant psychologist, who had prepared a report on the children for the purposes of the original care proceedings. The extract contained in the sibling assessment of July 2016 reads as follows:

 

 

 

Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””

 

It will be noted three dots appear about halfway down the extract indicating some material had been omitted

 

One hopes, of course, that the three dots are just indicating that there was extraneous and irrelevant information contained which has been snipped out to provide an accurate and thorough summary of what Dr Edwards had said.

 

Oh, dear.

 

Counsel for the children’s guardian, Mr Kingerley referred me to Dr Mair Edwards 2014 report. The passage omitted from the above extract reads as follows:

 

“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.”

53.The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not.

 

 

54.I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect.

 

 

The Judge went on to explore the other expert advice that the Local Authority had (quite properly) obtained when deciding whether to separate twins and if so, how to best manage this so that the damage could at least be reduced (but sadly had largely ignored)

55.The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of 12th April 2016. On the issues of separation and future contact between the twins if the decision was made to place them separately she said:

 

 

 

“Making the decision that twins should be separated is problematic. Although each child’s needs may be better met in separate families, they have been constant companions to date, and will find separation confusing and stressful. In addition they share a common heritage and history. The complexities of these children’s circumstances and individual needs should be considered at length and in detail, so that a decision can be made which will be of most benefit to both the children.

 

If they are to be separated, it would seem vital that there is ongoing contact between them. Both children would find the separation difficult in the short term especially, and would need the reassurance of frequent contact.

 

Ongoing contact would rely on two adoptive families both being willing to commit to this. If one child is adopted and one remains in foster care, then contact with the adopted sibling needs to be carefully considered, due to the link to the birth family.

 

Separation would obviously need to be done with a carefully constructed programme that takes both children’s needs into account.”

56.In light of this clear recommendation I am at a loss to understand why the local authority did the exact opposite. Prior to placement with the prospective adopters the twins had a ‘see you later’ contact session and that over the succeeding eleven months they had contact on just two occasions. The local authority was unable to explain who had made this decision for there to be very limited contact between the twins post placement or why this decision had been made.

 

If, like me, you are waiting to see what the reasons given by the Local Authority for the need to separate the twins in the first place was then you, I and the Judge were all equally frustrated that the reasoning just never materialised

 

 

 

 

57.The catalogue of the local authority’s errors and failings in this case is troubling and hugely lamentable. I do not minimise any of the admitted breaches of human rights and/or the other admitted failures by highlighting what I consider to be the most egregious failures, namely:

 

 

 

  1. i) the deletion of important and highly relevant information from the CPRs and Adoption Support Plans by the adoption team manager. This could only have been done to mislead the prospective adopters about BT and GT’s respective behaviours and needs with a view to increasing the prospects of them agreeing to a placement of BT or GT with them;

 

  1. ii) the deliberate and misleading selective quote from the report of Dr Mair Edwards in the so-called ‘sibling assessment’. I am satisfied that the social worker began this apparent assessment with the end result, that of separating the twins, already decided and wrote an assessment to support that conclusion. I do not understand why this assessment was written up three months after the decision had been taken on 10th April 2016 to place the twins separately for adoption or why this decision was not stayed pending the completion of a sibling assessment;

 

iii) the failure to give full and frank information about the twins to their prospective adopters and their respective supporting adoption agencies;

 

  1. iv) the complete and utter failure of the IRO service to satisfy any of its statutory duties in respect of BT and GT. The IROs and the IRO service did absolutely nothing to protect and promote the welfare best interests of the children and did nothing to challenge the local authority’s dreadful and, at times, irrational decision making and care planning; and

 

  1. v) the failure for there to be any note or record of the matters considered, the documents read or the reasons for taking the life changing decision to place the twins separately for adoption taken on 10th April 2016. It is astonishing given the highly unusual and momentous nature of the decision.

 

70.Ms Elgar, the assistant director of children’s services, and Ms Leader, the team manager, gave relatively brief evidence. Ms Elgar had been in post from June 2018 and Ms Leader became the team manager in July 2017. They both offered profuse apologies to the prospective adopters for the actions and failings of the local authority.

 

 

71.Ms Elgar could not explain how or why the material which had been disclosed at this hearing had not been disclosed at an earlier time or had been ‘lost’ by the local authority. She recognised the local authority’s serious shortcomings and sought to assure the court that action had been, and would continue to be, taken to resolve the identified and admitted failings of the local authority. She accepted the deletions from the CPRs and Adoption Support Plans resulted from a deliberate and wrongful act by an employee of the local authority.

 

 

72.It was Ms Leader who, having heard certain observations by me, checked the electronic records and discovered a considerable amount of material had not been disclosed. She readily accepted the decision to terminate BT’s adoptive placement in late 2017 had been wrong and the whole episode had been badly dealt with by the local authority. Mr Noble had noted that some of the documents disclosed in the hearing related to events some months or even up to two years before but had only appeared on the local authority’s computer system within days of each other in February or March 2018. When asked why this was, Ms Leader said that the previous social worker, D, had got seriously behind with her administration and had thus spent the last few days of her employment uploading two years worth of notes, records and other documents onto the system. When asked how this could have been allowed to happen, she could give no answer other than to say it was not good practice. This ranks as a masterful understatement and was a completely inadequate response. For the last seven or eight months of the social worker’s employment in children’s services, Ms Leader had been her line manager and had taken no effective steps to remedy this extraordinary state of affairs.

 

 

73.Finally, Ms Leader confirmed that no note, record or document had been found relating to the decision made on 10th April 2016 that BT and GT should be placed separately for adoption

 

The Court then was faced with what to do for these twins in the future, it having become abundantly clear that they ought not to have been separated, but that the independent expert analysis was now that they had settled with their prospective adopters and moving them would be profoundly damaging to them.

 

88.I have struggled with the concept that a court could find that it was in the welfare best interests of twins to place them separately for adoption. From the time the case first came before me up to and during the course of this final hearing I was keen to find a route by which BT and GT could be reunited in a single placement. If this proved impossible to achieve, I was keen to find a legal framework, short of adoption, which could afford them the degree of permanence, stability and security which I entirely accept they both so desperately require.

 

 

89.For the avoidance of any doubt, as I observed in the course of the hearing, in expressing these views I did not for one moment doubt the love, commitment and care which A, B and C have afford to BT and GT: quite the reverse. I wholeheartedly commend both sets of prospective adopters for the enormous great love and devotion they have shown to BT and GT, for their unswerving commitment to them and for the superlative care they have given BT and GT. It is plain that, notwithstanding the grave harm and damage they suffered in their past lives, they are thriving beyond expectations in the care of A and B and C. The stoicism each of these adults have displayed in the course of these lengthy proceedings has been admirable.

 

 

90.Nevertheless, BT and GT are not just simply siblings they are twins. In making adoption orders in favour of two separate sets of prospective adopters, I would sever the legal relationship of BT and GT as brother and sister. Further I would sever their legal relationship with their elder siblings. Whilst the latter is very important, it is the former consequence of adoption that principally troubles me.

 

 

91.There is no question of it being a realistic option in the welfare best interests of the children for either of them to return to the care of either parent. The mother manifestly is not capable of caring for them and neither is the father. In any event, he is serving a very substantial custodial sentence and is convicted of offences of child abuse.

 

 

92.Is there any other realistic placement together or apart? On the basis of the powerful and compelling evidence presented by the Anna Freud Centre and the most impressive and persuasive oral evidence of Dr Morris and Ms Mautner, supported by the children’s guardian and the local authority’s assistant director, and the compelling evidence of the prospective adopters, the answer is a resounding no.

 

93.I am of the view that if this local authority had exercised good social work practice and exercised a modicum of child focused judgment in its decision-making processes, there was, in my judgment, a real possibility that the children could have been placed and lived together for a substantial period of their childhoods. They had, I note, lived together in their foster placement for nearly three years albeit not without presenting their foster carers with immense challenges from time to time. Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT’s lives.

 

 

94.I am satisfied on the totality of the evidence before me that I cannot now contemplate moving either BT or GT, or both of them, from their placements without causing them serious harm and, potentially, lifelong grave harm. They are well settled with their prospective adopters and are plainly well integrated into what they consider to be their respective families. They are, for the first time in their lives, allowing themselves to believe they have their forever family. If one or other of them or both of them were to be moved, I accept the evidence of the Anna Freud Centre, that one or both of them would be devastated. They would suffer a sense of considerable loss, their behaviour would undoubtedly regress and they are likely never to allow themselves to trust a future carer or others involved in their lives: even if not likely, there is a substantial risk this would be the consequence of a removal.

 

 

95.To embark on the removal of the children with all the attendant serious adverse consequences cannot, in my judgment, be in the welfare best interests of either BT or GT. Accordingly, I am now persuaded and satisfied that both BT and GT must remain in the care of their respective prospective adopters.

 

The Court was driven to make the adoption orders, though not without a great deal of anguish.

 

Damages claims were agreed and settled.  (I think they seem very low for the twins, but that’s a personal view and opinion rather than a legal one, as damages is not my field)

 

  1. The damages agreed in satisfaction of A and B’s HRA claim were £5,000.00. The same sum was accepted by C in respect of her HRA claim.
  2. When considering the infant settlement approval of BT and GT’s respective claims for breaches of their human rights I had the benefit of advice on quantum by Mr Kingerley dated 16th November 2018. The local authority offered in settlement of the children’s claims the sum advised by counsel, namely £20,000.00 each. I was satisfied in all the circumstances of this case and having regard to recent authorities on the issue of HRA damages, that these were entirely reasonable damages to offer just satisfaction to both children. Accordingly, I approved the settlement achieved for BT and for GT. Further I made the declarations of the breaches of human rights of BT, GT, A & B and C in the terms agreed and set out in Annexes 1, 3 and 4 to this judgment.