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Category Archives: adoption

The Hungarian Games

 

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

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

 

 

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

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

 

Re AO (Care proceedings) 2016

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

 

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

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

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

Tricky to do.

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

 

 

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

 

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

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

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

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

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

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

 

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

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

 

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

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

 

 

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

 

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

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

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

 

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

 

 

 

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

 

 

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

 

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

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

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

 

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

 

 

 

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

 

Welfare

 

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

 

 

 

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

 

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

Oh boy, did someone say “Mystique?”

 

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

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

Trying to get child back after adoption order made

This case made quite a lot of news last year – parents of a boy born in 2012, who suffered significant fractures. Within care proceedings, there was a finding of fact that the parents had caused these injuries and in 2013, a Care Order and Placement Order was made. In 2014, the child was placed with prospective adopters and an adoption order was made. In late 2015 (3 years after the injuries, and a year after the adoption order was made) the parents were acquitted at the criminal trial.  In fact, the Judge at the criminal trial directed the jury to acquit as there was no case to answer.  (That’s obviously a lot stronger than the case going before a jury and the Jury not reaching a 12 or 10 juror verdict that they were sure the parents were guilty. This was a criminal Judge saying that the evidence showed no case to answer)

Understandably, there’s a lot of public disquiet about whether there’s been a miscarriage of justice here, and what would happen.

 

The law isn’t very helpful to the parents in terms of their ultimate aim to get their child back. An adoption order being overturned after it has been made is very very unusual. I’ve found only 2 reported cases where that happened. One was a step-parent adoption which the birth father had agreed to and later learned that the mother had lied to him, concealing the fact that she had a terminal illness and he would never have agreed to the adoption. The other was

PK v Mr and Mrs K 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2316.html

 

Where the child had been adopted by family members who had physically abused the child, who later left them and went back to live with mother. Everyone in the case was supportive of the adoption order being revoked.  I wrote about the difficulties here:-

Revocation of adoption order

 

The lead case on ‘oh, maybe we got this wrong, but the adoption orders have been made now’ is  Webster, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C.  The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/59.html

 

“Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

 

 

Anyway, in this case

Re X (A Child) 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1342.html

 

the parents went to the Court of Appeal, and all parties there *  supported a hearing taking place to DECIDE whether there should be a re-hearing of the finding of facts taking place, for the benefit of the child having the truth about their life and childhood and the public confidence in fairness of the justice system.

 

(* I add the asterisk, because as you can see from Re X, the adopters – who were at that point the child’s legal parents and had been for over a year, were not told about the circumstances or the litigation and were not parties to the proceedings. I’m not at all sure how that is fair or compliant with their article 6 rights. They were and are in law, the legal parents of the child, and it clearly had an impact on their family life.

Ms Fottrell QC made that same point, and I absolutely agree with her. The President bravely ducks the issue.

At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.)

 

The case has now come before the President, and he has published this judgment.   Bear in mind that the re-hearing has not taken place, so at this stage the family Court hasn’t decided whether the threshold criteria was wrongly found in 2013, or even whether it was right then on what was known at the time, but on what we know now it can’t stand.  The parents have been cleared and pretty comprehensively in a criminal Court, but the standard of proof is higher there, so it doesn’t automatically follow that any re-hearing would be bound to clear them. It very well might, but it might not.

 

As a matter of law, there isn’t really an easy legal framework for this to operate in. The parents aren’t able at this stage to apply to revoke the adoption application, because the findings in the care proceedings still stand, it isn’t an appeal out of time. So we of course use the Court’s magical sparkle powers of the inherent jurisdiction to have a decision as to whether to have a re-hearing. That’s not automatic legal aid, but it doesn’t say in the judgment that the parents  lawyers are acting pro-bono (for free) so they must have been one of those rare cases where the Legal Aid Agency grant exceptional funding under s10 LASPO.

 

The President reminded everyone that if there was a re-hearing and the findings were overturned, that would not automatically lead to the return of the child, and that the Court are not dealing with that application at all (yet), but of course, it is a prelude to the parents making such an application if the re-hearing vindicates them.

 

 

  • I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:

 

“44 The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: In re W (Children), para 149. In that case, the adoption orders “were made in good faith on the evidence then available” (para 177) and therefore stood, even though the natural parents had suffered a “serious injustice”: para 148. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application”. Butler-Sloss LJ held (p 228) that: “there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45 Whether the natural father would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46 In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.”

 

  • Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.

 

 

 

In terms of whether there should be a re-hearing, the President summed up the arguments

 

 

  • The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.
  • For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him.
  • I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about his past and about his birth parents. This has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W [1972] AC 24, 57, Lord Hodson, in the context of disputed paternity, said that:

 

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.”

In In re H (A Minor) (Blood Tests: Parental Rights) [1997] Fam 89, 106, Ward LJ said, apropos paternity:

“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”

To the same effect, in Re H and A (Paternity: Blood Tests) [2002] EWCA Civ 383, [2002] 1 FLR 1145, para 29, Thorpe LJ identified one of the principles to be drawn from the cases as being:

“that the interests of justice are best served by the ascertainment of the truth.”

 

  • But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, [1990] 1 FLR 167, and Mikulic v Croatia (2002) 11 BHRC 689, [2002] 1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.
  • The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, para 13(vii):

 

“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”

 

  • There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2394 (Fam), [2014] 1 FLR 523, paras 29-30:

 

“29 … We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [[2007] EWHC 136 (Fam), [2007] 2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

[30] Almost 10 years ago I said this (Re B (A Child) (Disclosure), para [103]):

‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”

 

  • In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

 

 

 

The law on re-opening a case is Re Z, and the President quickly skates through that (having already decided above that there is going to BE a re-hearing)

 

The re-hearing is going to take place in October 2016. That will be four years after the injury, three years after the Care Order, two years after the Adoption Order, and a year after the parents were exonerated at the criminal trial.  If nothing else, this case has not shown that the legal process can react swiftly. The President has also indicated that there may be before then a hearing about how the Press can report the re-hearing (thinking of the Poppi Worthington case, and the press interest there is going to be in this, it might for example include almost-live reporting and tweeting)

https://www.theguardian.com/uk-news/2015/oct/09/parents-cleared-of-abuse-launch-legal-battle-to-win-custody-of-adopted-baby

 

IF the findings are overturned at that re-hearing, there’s still a massive legal mountain to climb for the parents. The guidance in Webster is from the Supreme Court, so it isn’t open to the President to simply ignore it. It does however, give the small chink of light  An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”:

So a Court could potentially find that these ARE highly exceptional and very particular circumstances.  (though showing why very similar circumstances in Webster didn’t meet the test but this one does is going to require some particularly skilful footwork.)

 

I appreciate that people’s FEELINGS about this will be very strong, and many of you will strongly support the parents getting the child back. If I was doing the odds, based on the Webster decision, it is at best a 20% chance, even if they overturn the findings.  The Webster decision, in law, is a really high mountain to climb.  That test, as a Supreme Court decision, is a test that really only Parliament or the ECHR could change. So it is not hopeless for these parents, but legally they have a mountain to climb.

It is certainly true that the public debate and the judicial position on adoption is rather different than it was in 2008 when Webster was decided. It is possible that this will have an impact.

 

A dreadful set of circumstances for everyone involved – if the parents are found both to the criminal AND civil standard of proof to have not injured their child then what has happened to them has been the most awful thing one can imagine. They will have been completely let down by the British justice system.

It is almost impossible to understand how the child would make sense of it. The child’s adopters, who have had this child in their home for two years and who are now the legal parents of that child and consider him as part of the family, and who went into that process in complete good faith have to face months of doubt and anxiety about the future.  It would be nice if whatever the Court finally decide about the adoption order, both his adoptive parents and his birth parents get to play a strong part in his future life, but that in itself would be a brand new arrangement, never tried before in England, and litigation doesn’t often foster that spirit of all parties wanting to work together to do what is best for the child.

 

One thing is for sure, we are going to have a huge public debate about adoption in October 2016 when this case is decided, and an even bigger one if the parents are cleared but the adoption order still stands  (as the precedents suggest that it would)

Children and social work Bill

Long way to go, of course, but this lays out what the Goverment would hope to do with the new law.

http://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0001/17001.pdf

 

The thing that most of us are interested in are the proposed reforms to adoption law. So here they are:-

 

Section 8

Care orders: permanence provisions
In section 31 of the Children Act 1989 (care and supervision orders), for
subsection (3B) substitute—
“(3B)For the purposes of subsection (3A), the permanence provisions of a
section 31A plan are—
(a) such of the plan’s provisions setting out the long-term plan for the upbringing of the child conc
erned as provide for any of the following—
(i) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family

 (ii) adoption;
(iii) long-term care not within sub-paragraph (i) or (ii);
(b)such of the plan’s provisions as set out any of the following—
(i)the impact on the child concerned of any harm that he or she suffered or was likely to suffer;
(ii) the current and future needs of the child (including needs arising out of that impact);
(iii)the way in which the long-term plan for the upbringing of the child would meet those current and future needs.
This really just says that when considering the care plan (i.e what the child’s future should be), the Court need to take these specific things into account. It is just bringing any care plan in line with the additional things added to consider when making a Special Guardianship Order. I suspect, just as with the SGO formulations, that there is going to be a lot of argument before the Court of Appeal decide for us whether these provisions amount to ‘reparative care’ and if so, how one person’s ‘reparative care’ doesn’t become another’s ‘social engineering’ and putting children from poor families into middle-class families with greater resources.
What it is NOT, is anything that would make the Courts retreat from Lady Hale’s formulation in Re B. To be fair, the Government couldn’t, because so much of that was derived from the ECHR decision of Y v UK, and if the new Act tried to make a provision that adoption was not a last resort, only to be used where there was an overriding requirement for the child’s welfare, the cases would just be stacking up in the ECHR to fight that.
I’m a bit surprised that we didn’t end up with some sort of fudgy compromise like the shared parenting provision in the Children and Families Act – you know, something like “Where the Court is satisfied that adoption is in the best interests of the child, a Placement Order may be made”, but it isn’t there.
All of the things specified here are things that I think the Court’s DO consider, but it doesn’t hurt to have them set down clearly that they HAVE to be considered. It certainly isn’t something which shifts the legal test on adoption notably or is likely to ensure that the Prime Minister’s declared aim to double the number of children being adopted (sorry, he gave it in an interview to the Times, which uses a paywall, so I can’t link to it).
What else on adoption?
9Adoption: duty to have regard to relationship with adopters

(1) Section 1 of the Adoption and Children Act 2002 (matters to which court is to have regard in coming to a decision relating to the adoption of a child) is
amended as follows.
(2) After subsection (7) insert—
“(7A) For the purposes of this section as it applies in relation to a decision by a court, or by an adoption agency in England—
(a) references to relationships are not confined to legal relationships,
(b)references to a relative, in relation to a child, include—
(i)the child’s mother and father, and
(ii)any person who is a prospective adopter with whom the child is placed.
(7B)In this section “adoption agency in England” means an adoption agency that is—
(a)a local authority in England, or
(b)a registered adoption society whose principal office is in England.”
(3)In subsection (8) (meaning of “relative” etc), in the words before paragraph (a),
after “section” insert “as it applies in relation to a decision by an adoption
agency in Wales”
This section binds Courts, and means that they must take account in the welfare checklist, when considering making an adoption order, or the second stage of leave to oppose adoption application, of the child’s relationship with the prospective adopters.  Again, I think mostly they already did (well, on the odd occasion when they didn’t, the Court of Appeal stepped in).  This doesn’t affect anything that the Court of Appeal said in Re B-S about the test for leave to oppose adoption – but it doesn’t hurt to have it spelled out.
If these two clauses went through unchanged, tomorrow, I think that it would change final evidence a bit, change submissions a bit, and add a paragraph to judgments. I would be very shocked if any case that would today have been a placement with parents, or with relatives, or long-term fostering, would become a Placement Order and approved plan of adoption tomorrow.
There’s nothing like a duty on social workers to favour or prioritise adoption, or even to favour or prioritise adoption over say long-term fostering.
It is nowhere near the Gove/Cameron rhetoric, but then whilst we remain part of the ECHR, it couldn’t be. The drafters have done as much as they can, given the existence of Y v UK.
I rather like the Local Authorities corporate responsibilities to children – I mean, I loathe mission statements with the whole of my little black tiny heart, but I think that actually spelling out what the State should be doing for the children in its care is no bad thing.

 

Corporate parenting principles for English local authorities
1Corporate parenting principles
(1)A local authority in England must, in carrying out functions in relation to the
children and young people mentioned insubsection (2), have regard to the
need—
(a)to act in the best interests, and promote the health and well-being, of
those children and young people;
(b)to encourage those children and young people to express their views,
wishes and feelings;
(c)to take into account the views, wishes and feelings of those children
and young people;
(d)to help those children and young people gain access to, and make the
best use of, services provided by the local authority and its relevant
partners;
(e)to promote high aspirations, and seek to secure the best outcomes, for
those children and young people;

(f)for those children and young people to be safe, and for stability in their

home lives, relationships and education or work;
(g)to prepare those children and young people for adulthood and
independent living.
The extension of some leaving care provisions to the age of 25 is good for children, but until we see whether there will be any funding for it, rather meaningless. Without fresh money for those services, they can only be provided by making cuts elsewhere, and there’s not many places that can be cut without hurting other vulnerable people badly now.
The Secretary of State will have powers to create a Child Safeguarding Practice Review Panel, and it will be the Secretary of State who decides who will sit on the Panel, and she or he can remove members from that Panel if she or he thinks they are unfit or have behaved badly. This is a bit vague. It sort of reads as though they are going to take over the most Serious (read political or newsworthy)  Serious Case Reviews from Local Children Safeguarding Boards. Whether that is after, or instead of, I’m not sure.  The Panel does have power to compel any person to provide information to the Panel and they MUST do so. So a bit like a Commons Select Committee.
LA’s must notify the Panel where any of these criteria are made out
“16C Events to be notified to the Panel
(1)A local authority in England must notify the Child Safeguarding
Practice Review Panel of any of the following that occur in their area—
(a)the death of a child who is known or suspected by the local
authority to have been abused or neglected;
(b) serious harm to a child who is known or suspected by the local
authority to have been abused or neglected;
(c) the death of a child who was looked after by a local authority (within the meaning given by section 22(1) of the Children Act
1989);
(d) the death of a child in a regulated setting.
(That might be potentially very wide on (b) – given that the threshold for care proceedings is ‘significant harm’, what’s going to be the distinction between ‘significant harm’ which is all children in care proceedings and ‘serious harm’?
The definition says  :-

“serious harm” includes serious or long-term impairment of mental health or intellectual, emotional, social or behavioural
development.
So on the face of it, a skull fracture that a child survives is not serious harm, but failure by a parent to ensure the child goes to speech therapy, causing delay in language development which takes time to recover from might be…)
There’s some tightening up/refreshing of the Sectretary of State’s power to make regulations about social workers – their training, qualifications, disciplinary process and so on.
If you do adult work, the regulation of AMPHs and Best Interest Assessors is also in there at sections 39 and 40.
Section 15 is a bit chilling, and Community Care have written about that here.
http://www.communitycare.co.uk/2016/05/21/social-work-bill-gives-government-power-exempt-childrens-services-legal-duties/
My reading is that the Secretary of State’s powers to make regulations meaning that a Local Authority is exempted from large chunks of legislation to “allow it to try new methods of working” only apply where the Local Authority THEMSELVES ask for it (section15(3) ) , but I guess that in a scenario where the Secretary of State has appointed someone independent to run the LA children’s services  http://www.bbc.co.uk/news/uk-35088879 then the Secretary of State’s puppet sorry, independent appointee, may have the power.
I don’t much like the idea of there being chunks of law that don’t apply to certain Local Authorities. It also opens the door to Academy style incentives – become an “Academy” social work team in the Government’s new shiny model and look, we’ll get rid of the expensive leaving care provisions for you, and you get three years break from Ofsted, up to six if you play your cards right…
On the whole, I don’t think the Bill says a great deal, it doesn’t say anything particularly harmful – with the possible exception of s15, and a lot of it is just making it clear that things that are being done as voluntary best practice should be done by everyone, as a statutory requirement. It could have been a LOT worse. The Children and Families Act 2014, for example, was a LOT worse.

Beyond parental control

Threshold criteria – the legal ‘key’ which allows a Court to make a Care or Supervision Order, is defined by section 31 of the Children Act 1989 and it usually relies on the child having suffered or there being a likelihood that the child will suffer significant harm, as a result of the parent behaving in a way that would be unreasonable to expect of a parent.  There is, however, the much less frequently seen other limb which is that the child is ‘beyond parental control’.

 

There are volumes of reported cases about threshold on the first limb, but very little on the second, so even though this is a Circuit Judge decision and not binding precedent, it is worthy of discussion.

Re P (Permission to withdraw care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B2.html

I’ve written at some length about one of the cases cited in this judgment, Re K, and the facts here are somewhat similar.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

It relates to adoptive parents of a child, where the placement breaks down, and at much the same time, the relationship between the parents and the Local Authority similarly hits the buffers. (This was the second such breakdown – the child having been placed with different people previously, which makes things even sadder and harder)

In Re P, the Local Authority had issued care proceedings, but by the conclusion of the case were seeking leave to withdraw. That was agreed by everyone, but what was contentious was the basis of that withdrawal. The Local Authority contended that threshold was crossed but it was not in the child’s welfare interests to make an order, whereas the parents contended that threshold was not crossed.

It was common ground that as a result of her life experiences, the child was in a seriously bad way. She had been sectioned, diagnosed with an emotionally unstable personality disorder and had been self-harming. It was in no doubt that she had suffered significant harm. As a factual matter, she was probably beyond parental control. (Whether anyone could have exercised control with those particular difficulties is a considerable question)

The principal legal issue was whether you should approach threshold like this

  1. The child has suffered significant harm AND
  2. She is beyond parental control

Which was how the LA argued it

 

OR

  1. The child has suffered significant harm AND
  2. She is beyond parental control AND
  3. There is some casual link, even if it is not the only or dominant cause, between the child being beyond parental control and the significant harm.

As the parents were arguing.

For clarity, in the first instance, there’s no sense of blame, and in the second, there’s at least some slight degree of blame or responsibility for at least some of the harm.

If the parents have done nothing wrong, and the child being beyond their control is a CONSEQUENCE of her difficulties and the harm she is experiencing, rather than her difficulties and the harm being at least in small part a CONSEQUENCE of her being beyond parental control, then should threshold be crossed?  Can threshold be crossed if a parent has done nothing other than what any parent could have done in the circumstances?

It might have been quite easy for the parents in this case to say “Well, the LA aren’t seeking a finding that we did anything wrong, so let’s just agree threshold is crossed, and accept this plate of fudge” but I think that it raises an important point of principle and they were right to stand their ground.

As the transcript of judgment contains matters that are emboldened, I can’t use my usual approach of putting the judgment in bold, so bear with me. These are the relevant bits of the judgment

 

  1. S.31(2) of the children Act 1989 provides:-A court may only make a care order or supervision order if it satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm and that harm or likelihood of harm is attributable to…….ii) the child’s being beyond parental control. Mr. Sinclair relies upon the judgment of H.H.J.Bellamy, sitting as a judge of the Family Division in Re:K(Post Adoption Placement Breakdown) [2013]1FLR. where a child had suffered extreme damage in the care of her birth parents, resulting in an attachment disorder; expert evidence concluded that no blame could be attached to the adoptive parents for the child’s difficult behaviour and that the child was likely to suffer significant harm because of her reactive attachment disorder and not because she was beyond parental control.
  2. HHJ.Bellamy referred to the observations of Lord Nicholls in Lancashire v B [2000] 1FLR: ” ….the phrase “attributable” in S.31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child’s being beyond parental control on the other….. the connection need not be that of a sole or dominant or direct cause and effect, a contributory causal connection suffices”. At para. 149 he concluded that if a child suffered significant harm as a result of a disorder which effected her behaviour and as a result of that behaviour the parent is unable to control the child, that lack of control was at the very least, a contributory cause of the likelihood of future harm. Accordingly he made a care order, in the belief that it was not open to him to ward the child. Subsequently the Court of Appeal discharged the care order and made her a ward of court.
  3. Mr. Sinclair urges me to take a similar approach in this case and conclude that the harm caused to T. or likely to be caused to her whilst a result of her mental health diagnosis was/is attributable to her being beyond parental control – at least in part. He has also referred to para.3.1 to the 2008 guidance to the Children Act for the use of local authorities that the court is required to determine as a matter of fact whether a child is beyond parental control and if he/she is it is immaterial who, if anyone is to blame. This paragraph has been omitted from the current guidance.
  4. Conversely , Mr. Parker on behalf of the parents argues that the comments of Lord Nicholls make it clear that the inclusion of the word “attributable” results in the need to make a causal connection between harm and being beyond parental control, albeit it need not be the only or dominant cause; that on the facts of this case, whilst there is overwhelming evidence that T. has suffered and is likely to continue to suffer significant harm, there is no evidence that this is attributable in any way to the fact that T is beyond parental control. He refers to the authorities of Re: O [a minor] (care proceedings: education) 1992 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141 Stuart-White as authority for the proposition that lack of control involved parental culpability. Having read these two judgments in my view both learned judges assumed this proposition to be the case. I have also considered Re:L (a minor) Court of Appeal 18.3.1997
  5. Ms. Jones on behalf of T. (who visited me this morning in the company of two members of staff from the hospital, where she is an in-patient), and Ms.Jones pointed out that the guardian (and her predecessor) seriously questioned the actions of the local authority in issuing these proceedings. I voiced that opinion at an early CM hearing and I urged the local authority to consider at a senior level whether these proceedings should continue. Despite the views of the previously allocated social worker in her first and second statements that the parents were not a protective factor for T. and the assertion that the local authority needed to share parental responsibility for T, T’s previous treating psychiatrist was quite clear in the professionals’ meetings that the parents had only ever had T’s interests at heart and were indefatigable in supporting her and trying to obtain the best treatment. At paragraph 30 of Ms.Jones’ skeleton argument she says “It should be made very clear in the judgment that the parents are not culpable in any way, that there is no evidence to support inadequate parenting and that they have shown themselves to be committed parents and advocates for their daughter.”
  6. Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re:K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.
  7. There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.   [underlining mine on this paragraph]

 

There is a broader issue and that was highlighted considerably in the Selwyn 2014 research on adoption breakdowns https://suesspiciousminds.com/2014/04/10/adoption-breakdown-research/  which showed that once adopters came to local authorities with problems or the placement was beginning to show cracks, the supportive element seemed to be frequently replaced with a combative and blaming approach. I don’t know the background and facts of this particular case other than what is in the judgment, but it does seem to me that blame was the last thing that was needed.  I wish this young woman, and her parents, well for the future and hope that she can get the help that she clearly needs and that after this hearing, everyone involved in her life will be able to pull together and work with each other.

Disguised compliance

 

This is a case where a Judge was critical of the Local Authority’s use of the phrase “disguised compliance”.  I know that it is a phrase that sometimes puts hackles up

Pink Tape sums up very well just how annoying some people find the phrase  – though her particular issue is that it should be “disguised non-compliance”

http://www.pinktape.co.uk/rants/mini-vent/

(I’m going to suggest in this piece that the problem is not the phrase or the concept, it is throwing the label around when there’s no evidence that it is happening. It is when people just assert that it has happened without going to the bother of proving it with evidence.   It is a similar sort of effect when people describe a child’s description of abuse as a “disclosure” rather than an “allegation” – because the former implies that the child must be telling you something true, and the latter is a more accurate description of the account of abuse until such time as a Court makes decisions about whether it happened)

 

 

Disguised compliance is a recognised phenomenon in child protection, and one that frequently comes up in Serious Case Reviews , it is generally defined thus:-

 

Disguised compliance involves parents giving the appearance of co-operating with child welfare agencies to avoid raising suspicions and allay concerns. Published case reviews highlight that professionals sometimes delay or avoid interventions due to parental disguised compliance.

https://www.nspcc.org.uk/globalassets/documents/information-service/factsheet-disguised-compliance1.pdf

 

So it can be a real thing, and it can be a real problem that professionals need to be aware of.  Professionals failing to spot the difference between a parent who has genuinely changed and is trying their best and one who is trying it on, have ended up with children who were seriously harmed or worse.  It was, for example, a major feature in the Victoria Climbie Serious Case Review, also in the Peter Connolly one.

A sceptical enquiring mind is appropriate – the mind should be open to both possibilities and assess the evidence.

The difficulty, of course, is the differential diagnosis – a situation could be disguised compliance, or it could be a parent genuinely doing everything that they are being asked to do.

If for example, a Local Authority say to a mother, we want you to separate from father and not have contact with him, and allow us to make unannounced visits and improve the home conditions, there are instances where this is exactly what the mother does and that’s positive evidence of change and a good indicator for the future. However, there are cases where the parents pretend to have separated and see each other secretly and everything on the surface looks the same as the mother who has really made those changes. The latter would be disguised compliance. Someone pretending to have changed, but not having really done it.

The issue, of course, is that simply looking at a parent and labelling what they are doing as “disguised compliance” is an allegation – that the parent is not really changed and is not trustworthy. And if you are as the State making an allegation, then the burden is on you to prove it, and you have to provide evidence to that effect. Simply labelling someone’s behaviour as “disguised compliance” is not sufficient.

If a parent is doing everything that you have asked them to do, then you can’t simply undermine that by saying “Ah, but it is just disguised compliance”    – that’s like having your cake and eating it. The LA seem to be in a position of being able to criticise someone for not doing what they were asked to, but also being able to criticise them for doing it.  Obviously, if there’s evidence that someone’s attitude and insight has not changed, or that they are not actually doing what they claim to be, that’s a different matter – depending on the evidence.

It may well be very sensible to have in mind that a given set of facts could be genuine change or it could be disguised compliance, and to assess the situation and check how you are monitoring, but if you can’t provide the evidence that what the mother is doing is disguised compliance, you cannot just write all of the observed changes off by saying that’s what it is. The law, and the Courts, work on evidence, not mere suspicion or speculation.

DV (Adoption or Rehabilitation) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B12.html

 

The Local Authority repeatedly use a phrase critical of the mother when they say that she has engaged in ‘disguised compliance’. It may be that their terminology is loose, but I find that it is not supported by any recent evidence. Indeed, the social worker is happy to praise the mother’s engagement and was positively enthusiastic about the counselling which was underway. Certainly, the children’s guardian was rejecting of the criticism implicit in the phrase ‘disguised compliance’. The guardian told me that the mother now recognised the need for change, she wanted to change, she had fully engaged with everything that had been offered, and she was in the process of change. 

 

 

The Judge, having heard all of the evidence in the case was satisfied that the mother genuinely had separated from the father, and had learned from her mistakes and was working genuinely to make and sustain changes, and therefore refused the plan for adoption – the child was returned to the mother’s care.

Child in care wanting parents to have no information or involvement

 

This issue has to be one of the most Frequently asked questions that I get as a Local Authority lawyer  – “Little Frank is in care and he doesn’t want his mum to know X,  do I respect Frank’s wishes, or respect the duty in the Act that parents are to be consulted with about major issues?”

 

[Very often this comes up in relation to contraception, pregnancy etc, but also sometimes just that the young person wants no information about themselves to be communicated by the Local Authority to their parent]

 

In this case, PD v SD & Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/4103.html

 

Keehan J was faced with a child who had been born a girl, named HD, who had changed her name to PD and wished to change her identity to male.  He was 16 years old, and had been adopted at the age of 6. Things had become difficult and unworkable, and PD was in voluntary care under section 20 of the Children Act 1989.   PD was going on to have assessment and assistance from the Tavistock about his gender identity. He did not want his adoptive parents to be involved or given any information.

It became as stark as this :-

So strongly held are his views that Ms. Morgan QC told me he would even wish his parents not to be notified if he were required to receive emergency medical treatment. The depths of his wishes are conveyed by his view that if he suffered a serious accident and underwent emergency surgery he would not want to wake and find his parents at his bedside.

 

Meanwhile, his parents were still hopeful of a reconciliation and wanted to be involved in PD’s life in some capacity.

 

  1. THE LAW
  2. It is agreed by all parties that I have a jurisdiction to grant the declaratory relief sought by P.
  3. By virtue of s.8(3) of the Family Law Reform Act, P, now aged 16, can give valid consent to medical and surgical treatment.
  4. If P was not provided with accommodation by the local authority and was not a looked after child, the local authority would not be obliged to consult with or give information to P’s parents.
  5. Since he is a child looked after by the local authority, it is obliged by s.22 and s.26 of the Children Act 1989 to consult with and give information to the parents. Section 22 provides:

    “Before making any decision with respect to a child whom they are looking after or proposing to look after the local authority shall, so far as it is reasonably practicable, ascertain the wishes of-

    (a) the child;

    (b) his parents;

    (c) any person who is not a parent of his but who has had parental responsibility for him; and

    (d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided.”

    There are further obligations in a similar vein imposed by the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010.

  6. The Article 8 Convention rights of P and of his parents are engaged. I take particular account of the decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, that where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail.
  7. In the case of Re C (Care: Consultation with Parents not in Child’s Best Interests) [2006] 2 FLR 787, Coleridge J decided it was not in the best interests of the subject child for the local authority to consult with or give information to the father. In his judgment he expressed the view that it was only in very exceptional circumstances that such an order would be appropriate. The factual matrix of that case was very different from the circumstances of this case.
  8. In my view, rather than considering whether the facts of the case are very exceptional, although in my judgment the facts of this case are very exceptional; I should instead focus on the competing Article 8 rights of P and of his parents.

 

 

There were three major relevant pieces of caselaw – it won’t surprise anyone to know that one was Gillick. The second was Naomi Campbell’s privacy case, setting out that a person’s medical records and medical treatment is private. The third is one precisely on point as to when a young person acquires the right for their medical treatment to be kept confidential from a parent.

 

  1. In the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 Lord Scarman said, at 185(e):

    “The rights of a parent exist primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions.”

  2. Baroness Hale, in the case of Campbell v Mirror Group Newspapers Limited [2004] 2 AC 457 said at p.499:

    “It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor/patient relationship but from the nature of the information itself. As the European Court of Human Rights put it in Z v Finland [1997] 25 EHRR 371:

    “Respecting the confidentiality of health data is a vital principle in the legal system with all the Contracting State parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in health services generally. Without such protection those in need of medical assistance may be deterred from revealing such information of a person and intimidate nature as may be necessary in order to receive appropriate treatment and even from seeking such assistance, thereby endangering their own health and, in the case of transmittable diseases, that of the community.””

  3. I was referred to the case of Regina on the Application of Sue Axon v Secretary of State for Health [2006] EWHC 37 (Admin). During the course of judgment Silber J said, at para.64:

    “It is appropriate to bear in mind that the European Court of Human Rights attaches great value to the rights of children. Furthermore, the ratification by the United Kingdom of the United Nations Convention on the Rights of the Child in November 1989 was significantly showing a desire to give children greater rights. The ECHR and the UNC show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child. It must not be forgotten that this duty was described in Z v Finland as a vital principle in the legal system of all Contracting Parties to the Convention.”

    Then at para.127 he said:

    “I am unable to accept Mr Havers’ contention that by permitting a medical professional to withhold information relating to advice or treatment of a young person on sexual matters, the Article 8 rights of the parents of the young person were thereby infringed. In considering this issue, it must always be remembered first, that in Z v Finland the European Court emphasised the significance and compelling nature of a patient’s Article 8(1) right to confidentiality of health information as explained in paragraph 63 above. A similar approach was adopted in MS v Sweden, in which it is said at page 337 in paragraph 41 “respecting the confidentiality of health data is a vital principle in the legal systems of all Contracting Parties to the Convention”. Although these cases deal with the position of an adult there is no good reason why they could not apply to protect the confidentiality of health information concerning a young person, especially because, as I have explained, that a duty of confidentiality is owed to a young person by medical professionals.”

    Finally, at para.130 to para.132 he said:

    As a matter of principle it is difficult to see why a parent should still retain an Article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professionals and its implications. Indeed, any right under Article 8 of a parent to be notified of advice or treatment of a sexual matter as part of the right claimed by Mr. Havers must depend on a number of factors, such as the age and understanding of their offspring. A parent would not be able to claim such an Article 8 right to be notified if their son or daughter was, say, 18 years of age and had sought medical advice on sexual matters, because in that case the young person is able to consent without parental knowledge or consent for the reasons set out in paragraph 1 above. The reason why the parent could not claim such a right is that their right to participate in decision making as part of the right claimed by Mr. Havers would only exist while the child was so immature that his parent had the right of control as was made clear in Gillick. In my view, any Article 8 right of the kind advocated by Mr. Havers must be seen in that light so that once the child is sufficiently mature in this way the parent only retains such rights to family life and to be notified about medical treatment if, but only if, the young person so wishes. Indeed, whether there is family life and hence a right to family life of a particular family is a question of fact. The European Commission on Human Rights has explained the existence of family ties depends upon the real existence and practice of close family ties. It is not clear why the parent should have an Article 8 right to a family life where first the offspring is almost 16 years of age and does not wish it, second where the parent no longer has a right to control the child for the reasons set out in the last paragraph and third where the young person, in Lord Scarman’s words, “has sufficient understanding of what is involved to give a consent valid in law”. There is nothing in the Strasbourg jurisprudence which persuades me that any parental right or power of control under Article 8 is wider than in domestic law. Parental right to family life does not continue after the time when the child is able to make his own decisions. So parents do not have Article 8 rights to be notified of any advice of the medical profession after the young person is able to look after himself or herself and make his or her own decisions.”

  4. I respectfully agree with Silver J’s analysis of the law and of the relevant legal principles.

 

There were therefore two competing Article 8 rights to balance, and the Court considered that they were to be balanced in favour of the young person, who was 16 and capacitious and understood the issues involved and had made his decision that he did not want his parents to be given that information.  [I think there’s an argument that this rather reverses Coleridge J’s decision in Re C – rather than becoming exceptional that a Local Authority respect a child’s wishes not to share information with a parent, it seems to become the norm if the child is capacitious and expressing a view not to share the information – though this was, and is, of course an exceptional case]

 

  1. DISCUSSION
  2. The situation in which P and the parents find themselves is extremely difficult for each party. The parents struggle to understand P’s position, feelings and his decision about his gender. He struggles to understand their complete lack of support and understanding. The upshot is that he, at 16 years of age, has decided to completely disengage from family life with them.
  3. On the basis of the authorities I have referred to above, that is a decision he is perfectly entitled to reach and is one which this court must respect.
  4. There is no issue that P should be afforded privacy in respect of his medical treatment. In any event, I am entirely satisfied that he is entitled to respect of his privacy on these matters as a matter of law.
  5. I am pleased to learn that the parents, having expressed a willingness to engage with the Tavistock Centre throughout, will continue to seek guidance and support from the same. I am sure that will be extremely helpful for them. It may well help them to come to an understanding of why P finds it so distressing when they have referred to him as H.
  6. Like the parents, I very much hope the time will come when a reconciliation is effected between P and the parents. In my judgment, however, the surest way of seeking to secure that outcome, is to respect P’s current wishes and feelings.
  7. When balancing P’s Article 8 rights against those of the parents I am entirely satisfied the balance falls decisively in favour of P’s Article 8 rights. At the age of 16, having decided to disengage from his family in the very sad circumstances of this case, it is for P to decide what, if and when any details about his life are given to his parents. I have taken particular account of the genuine and sincere conviction with which P has expressed his views and wishes. It would, in my judgment, be wholly contrary to (a) his welfare best interests, (b) his Article 8 rights and (c) any hope of a reconciliation being effected for the court to override his views and permit or require the local authority to provide information about P to his parents.
  8. Accordingly, I propose to grant declaratory relief as sought by P.
  9. I know that this decision will be a source of real disappointment and distress to the parents. I hope, however, they will understand the reasons for my decision in the fullness of time.

 

[Another way of looking at it, not considered within this judgment, is whether the LA are capable of complying with the section 22 duty to consult with a parent where the young person is Gillick competent and objects, because of the provisions of the Data Protection Act and that the subject has rights about how their information, particularly sensitive personal information such as this is processed]

 

Very sad case, where you have to feel for everyone involved, and just hope that for all of them what must be extremely difficult and painful now may result in less pain and hardship in the future.

Relinquished baby, chapter and some verses

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

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

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

 

Baker J in Re JL (2016)

 

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

 

 

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

 

 

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

 

Re C  v XYZ Local Authority 2007   Court of Appeal authority

 

 

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

 

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

 

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

 

And what about a father?

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

 

 

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

the relevant case is

 

M v F [2011] EWCA Civ 273

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

 

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

 

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

 

From Re X 2007 (as referred to above)

 

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

 

 

This is now  Family Procedure Rules 2010

 

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

 

 

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

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

 

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

 

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

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

 

 

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