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Category Archives: adoption

Judge versus Fostering Panel

 

Actually, this was more of a Triple Threat match, with Judge versus Fostering Panel versus Agency Decision Maker, but you get the general idea.

 

Re T (A child) 2018  EWCA Civ 650

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/650.html

 

This is a Court of Appeal decision with Jackson LJ giving the lead judgment.

 

At final hearing, the LA sought Care Orders and Placement Orders with a plan of adoption. After hearing seven days of evidence, the Judge decided that on balance, the right legal framework for the child was to live with paternal grandmother under a Care Order.  Before the orders could be made, however, the Judge needed to establish whether that was legally possible.

That’s because as a result of the way the Children Act 1989 is constructed, a Local Authority can only place a child who is the subject of a Care Order with  (a) his or her parents OR (b) with a foster carer approved by the Fostering Panel.   Everyone who isn’t a parent has to fit into the second category, which means that the grandmother would need to be approved as a foster carer.

(There is one super obscure third way, which didn’t come up in this case… it takes about two pages of very very very detailed explanation, but the gist of it is that you use section 22C(6) (d), to sanction the placement, which needs approval of the IRO rather than Fostering Panel. Let’s ignore it for now. It’s uber-geeky. )

 

The Local Authority took their case to Fostering Panel,   who unanimously said no

 

  • The panel unanimously resolved not to recommend the grandmother as a connected foster carer. They gave these reasons, which I again quote verbatim:

“(1) The risks and vulnerabilities outweigh strengths to the application.

(2) It is likely that Alan’s needs for emotional stability, sense of positive role modelling of internal family dynamics, safeguarding of contact and sense of identity will be compromised.

(3) Panel members felt the likely risk to Alan’s safety around contact with birth parents and the grandmother’s ability to manage this over the long term.

(4) The grandmother’s lack of insight into the impact of her relationships and family dynamics and discord has on children in her care and her ability to manage this.

(5) The grandmother’s inability to grasp the emotional needs of Alan given his traumatic start to life and future uncertainties.

(6) Concern that the grandmother may not work in partnership with professionals in an open and honest way.

(7) That the following National Minimum Standards for fostering are not met:”

It can be seen that the social workers did not advance the court’s assessment at the panel but instead contested it and gave the panel to understand that they “could not or would not commit to” a care order, which they described as an intrusion.

 

Then, because this case isn’t already bogged down with ponderous technicalities about how a Local Authority works, the recommendation of the Fostering Panel had to go to the Agency Decision Maker to make the decision.  The Agency Decision Maker is a statutory office, a senior member of the Local Authority.  That’s because by law, Fostering Panel has to have people who AREN’T in the LA  as part of the make-up of the Panel, but also by law, people who AREN’T part of the LA CAN’T make DECISIONS on behalf of the LA.  So they make a recommendation and then the Agency Decision Maker decides it.

 

I didn’t make these rules, I’m just trying to explain them.

Also, the Agency Decision Maker said no. 

  1. On 9 November, the Agency Decision Maker made a decision accepting the panel’s recommendation. She did so by signing the minutes against the pre-entered word ‘Agreed’. Her signature appears at the foot of a box entitled ‘Decision’, which was left empty. The parties received the decision on 10 November, which was a Friday.

 

On the Monday, still staggering with the effects of shell-shock from that decision, the parties attended Court. None of them had really sketched out their Plan B, understandably. I don’t know whether there was an application to adjourn to take stock or not, but what ultimately happened was that the Judge decided in essence :- I’ve already decided that narrowly, a placement with grandmother under a Care Order is the only alternative to adoption, so if I can’t legally place with grandmother under a Care Order, there is no alternative to adoption, so Care Order and Placement Order.

 

The Court of Appeal note that they (the Court of Appeal) had more assistance from the advocates as to the legal options than had been given to the Judge at the time.

 

The first option, obviously, was for the Judge to explore further the Fostering Panel’s recommendation (given that it does not seem obvious that they were properly informed of the Judge’s decision following seven days of evidence and the reasoning), and the Agency Decision Maker’s decision, which did not follow any of the Hofstetter principles

  1. In Hofstetter v LB Barnet and IRM [2009] EWHC 328 (Admin), Charles J gave guidance on the Agency Decision Maker’s approach in relation to adoption approval. This has been endorsed for use in fostering cases by statutory guidance (The Children Act 1989 Guidance and Regulations Volume 4: Fostering Services at 5.40). It is good discipline and appropriate for decision-makers to:
  2. list the material taken into account in reaching the decision;
  • identify key arguments;
  • consider whether they agree with the process and approach of the relevant panel and are satisfied as to its fairness and that the panel has properly addressed the arguments;
  • consider whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation;
  • identify the reasons given for the relevant recommendation that they do or do not wish to adopt; and
  • state (a) the adopted reasons by cross reference or otherwise and (b) any further reasons for their decision.
  1. Of course none of that was done in the present case.

 

It was literally a box-ticking exercise rather than that detailed analysis.

So the Court could have explored that further and invited the ADM to attend and to give evidence, with a view to seeing whether the decision could be reconsidered.

 

The Court could also have explored a range of other legal framework options – although a Care Order might have been viewed as the best option, if it were not available, it wasn’t simply that no option existed and hence adoption had to be the plan. A lesser order, whilst less desireable, had to be properly weighed against adoption. A Special Guardianship Order, Child Arrangements Order, Supervision Order or Interim Care Order (with presumably the Court sanctioning the placement using the Cardiff City Council v A decision of the President that this could be done as an assessment under s38(6) were all possibilities that could be considered.

 

And of course, the Court of Appeal note, that the Judge could have wheeled out the Enola Gay option of wardship

 

  1. Another potentially relevant decision that was not brought to the judge’s attention was Re W and X (Wardship: Relatives Rejected as Foster Carers) [2004] 1 FLR 415. In that case, three children were living with their grandparents. The local authority wanted to continue the placement under a care order, but the statutory and regulatory provisions that were then in force meant that if a care order was made, the children would have had to be removed. Hedley J responded by making private law orders, supervision orders and orders in wardship, all with the agreement of the local authority. The case is different on its facts, as the legislation has since been amended to make particular provision for the approval of family foster carers, but it shows that wardship can exceptionally be available to achieve a good outcome where other avenues are blocked.

 

 

So the decision to make a Placement Order was overturned and sent back for re-hearing.

 

Conclusion

  1. Drawing these matters together, as regards the parents the threshold for intervention was not in doubt, and the conclusion that they could not care for Alan was clear and, in the end, undisputed. The welfare decision as to whether there could be a family placement with the grandmother was in contrast finely balanced. The judge carried out a thorough fact-finding process and a careful welfare evaluation, leading her to the conclusion that this placement was in Alan’s interests, provided that the necessary local authority services were made available. That was her first preference as a way of promoting Alan’s welfare and respecting the Article 8 rights that were engaged. Her preference was not supported by the decision of the local authority’s fostering panel which, on a much more limited set of data, evaluated the grandmother’s ability to care for Alan differently. For her part, the Agency Decision Maker gave no indication of exercising an independent judgement beyond a simple endorsement of the panel’s recommendation.
  2. Faced with this unfortunate situation, the judge did not press the local authority further. She treated its stance as being beyond the power of the family court to amend and she removed placement with the grandmother from the list of realistic options. She then went on to balance adoption against the (unrealistic) option of long-term fostering before reaching her conclusion.
  3. It is entirely understandable that the judge wanted to reach a final decision. Alan was by then a child aged 15 months who had been in foster care all his life. The statutory obligation under CA 1989 s.32, requiring the court to timetable the proceedings to conclude within 26 weeks had been repeatedly exceeded and extended. The proceedings had been on foot for 14 months. The judge was demonstrably aware that such extensive delay was seriously disadvantageous for a child of this sensitive age, and of the psychological advantages to him of being able to forge bonds with adopters. However, the extensions of time to conclude the proceedings could only have been granted because the court considered them “necessary to enable the court to resolve the proceedings justly”: s.32(5). To state the obvious, the proceedings could only be concluded if they could be justly concluded.
  4. In the end, I am in no doubt that, despite the difficulties of the situation, the judge was wrong to make a placement order at the point that she did, for these essential reasons:
  5. (1) The judge underestimated her powers. She should not have accepted the local authority’s unchanged position without calling it to account for what was on the face of it an unconvincing response to her careful assessment of risk and welfare. This could have been done in a number of ways, as suggested by Ms Seddon, Mrs Hendry and Mr Messling.

(2) It is true that the judge stayed her order to allow for judicial review proceedings, but that amounted to an acknowledgement that the resources of the family court were exhausted, when they were not. In effect, she accepted the submission of the local authority, recorded at paragraph 34 above, that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court. It was.

(3) Even if the point arrived where a decision had to be taken in circumstances where the local authority maintained a refusal to approve the grandmother as a foster carer, it was necessary for the judge to re-evaluate the remaining options for Alan’s future. By not doing this, she effectively boxed herself in. Had she looked at matters afresh, she would inevitably have confronted the fact that this was a child who was being sent for adoption as a direct result of a decision of a non-court body, an outcome unprecedented in modern times so far as I am aware. She would then have been able to weigh that prospect against a range of lesser legal orders (interim care order, private law order, supervision order, injunctions, special guardianship, wardship) in order to arrive at a valid welfare outcome.

(4) The fact that the local authority’s decision arose as a result of a second process (fostering approval) does not alter the general principles that apply. The Agency Decision Maker was not obliged to follow the recommendation of the panel. Nor was the Agency Decision Maker in relation to fostering approval responsible for the case put by the local authority to the court. The judge’s further investigations would have led her to better understand who was ultimately directing the local authority’s thinking and to achieve an effective engagement with them until the issue had been satisfactorily resolved.

  1. For these reasons, I agreed that the appeal should be allowed and that the matter should be reheard by a different judge. The rehearing will be limited to a consideration of the grandmother’s position and not involve any reconsideration of the parents as carers.
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Runaway train, never going back

The British Association of Social Workers, BASW, commissioned an independent report to look at adoption. The report has just been published.

There’s a summary piece at the Guardian about it

https://www.theguardian.com/society/2018/jan/18/adoption-has-become-runaway-train-social-workers-cannot-stop

In summary of the summary, concerns about a lack of ethics and human rights approach, concerns that adoption has been politically pushed and dominates thinking, concerns about lack of support for families and adopters, concerns that there’s rigidity in thinking about contact (and the report compares the English approach of an assumption of no direct contact with Northern Ireland where the assumption is that there should be direct contact four to six times per year) and critically that there’s not enough attention being paid to poverty (and austerity) being the driving force behind children being removed from families.

The impact of austerity was raised by all respondents to different extents but was a particular
concern for social workers. Cuts to family support and social work services were a recurring
theme, with the decreasing availability of early help highlighted. Very costly resources are being
used in care proceedings. As a result, less is available for earlier interventions that could support
children to stay at home safely.
Most respondents wanted a better balance between support and assessment, with families
currently too often subject to repeated assessments rather than actually helped. A number felt
social work had become increasingly risk averse and fearful of blame, with the high rates of care
applications one key example given of the impact this has on practice.
A lack of resources once children had come into care or been adopted was similarly seen as
impacting on the effectiveness of services. There were many observations about decision-making
being impacted by the lack of resources and examples given of the results, such as siblings not
being placed together.

Having read the report, I think the summary is a fair one – the report does raise all of those issues. The report is careful to say that just as treating adoption as a perfect solution for all families is not realistic or helpful, demonising all social workers is not realistic or helpful either. Adoption is the right outcome for some children, and some adoptive families thrive and prosper. But there needs to be a genuine debate about whether it is being sought too frequently.

The report is here
http://cdn.basw.co.uk/upload/basw_55841-1.pdf

I’m not going to attempt to critique it or deconstruct it – it’s a long and thoughtful piece, taking on board views of a wide variety of people involved in the process, notably hearing from both birth parents and adoptive parents who had very similar viewpoints on some issues. I have had the opportunity to read it twice, but I honestly feel I want more time with it and to reflect on it. So I don’t know whether I agree with it all, but it says things that I genuinely think needed to be said and need to be discussed and thought about. And I wanted to alert people to its existence and hopefully get people to read it and have those conversations.

Nothing in family justice ever exists in a vacuum though – for every person who reads the report and agrees with it, there will be ten who think it doesn’t go far enough and that adoption should be burned to the ground, and ten who think it is ridiculously anti-adoption and goes far too far. That polarisation about adoption is, itself, part of the problem. The stakes are so high, the emotional devastation caused to those on the wrong side of adoption so great, the political capital invested in it, that it is hard to have the conversations that need to be had.

A particular issue that comes up within the report is the self-labelling by the social work system of social workers being ‘the social worker for the child’ rather than a social worker for the family.

The definition of the social worker role as being ‘the social worker for the child’ was a source of
concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

A lot of the respondents talked about the importance of the relationship that existed between the social worker and the family – and how the quality of that relationship can transform cases (for good or ill)

Repeatedly, across the range of family members, the importance of the relationship that was
developed with a social worker was stressed.
Birth family members gave accounts of both poor and good relationships. They related experiences of feeling deceived by social workers who they considered had not been honest with them. They described not understanding or being helped to understand why their child(ren) were
permanently removed; being unfairly judged/ labelled (‘the report said I was ‘hostile’ so he could not stay, but I was not hostile – I am ‘loud’’ – birth grandmother from a traveller background); and
generally being treated in what they perceived were inhumane ways.
Birth family members emphasised the importance of social workers listening to their views, being
respectful and honest, recognising strengths and displaying acts of kindness. It was considered
that the nature of the relationship could influence what happened with the child. Examples were
given of differing outcomes for children in the same family (i.e. adoption or remaining with the
parents) and these were, at least in part, attributed to the quality of the relationship with the
individual social worker. It was considered vital that social workers have the time to get to know
and work with the family in non-judgmental ways.

Many of the responses from adoptive parents repeated the themes found in the birth parents’
accounts. The relationship between the social worker and adoptive parents was considered to be
key, with the importance of professional but caring social workers highlighted. Adoptive parents
and adopted people also spoke about the importance of good communication, honesty, being
listened to and treated as an individual human being.

The use and misuse of power was a key issue

Families stressed that social workers have a great deal of power in relation to assessment, the
provision of help and decision-making. There were many examples given by birth families,
adoptive parents and adopted people of how they had experienced the exercise of social workers’
power, both positive and negative.
Birth family members repeatedly mentioned the lack of attention by social workers to the social
contexts in which they lived. A number of respondents reported that housing, or the lack of it,
was used as evidence against them in assessments.
The importance of practical support was stressed; ‘a washing machine for example would have made a big difference’ (birth parent). One birth mother spoke of the lack of adequate interpreting facilities in her contact with social workers and legal professionals. Other birth family members also felt discriminated against because of their cultural practices (e.g. a traveller background) or for being working class or having a lack of secure immigration status.
There were many examples provided by birth parents of feeling powerless in a climate that was
seen as very risk averse. Risk of future emotional harm was described as being frequently used,
and was seen as a particularly unjust basis for permanent separation. Birth mothers reported high
levels of domestic abuse and suggested they were being punished for having a violent partner
and/or having experienced domestic abuse in childhood.
Fear of an unsympathetic and punitive response was seen as inhibiting families from asking for
help when it was needed. Parents with mental and physical health problems and learning
difficulties all reported concerns about asking for help because of the emphasis on risk. They
reported receiving an assessment rather than support and feeling they were being scrutinised
rather than helped.
Being judged and stigmatised simply for having a history of care and/or abuse was an issue. Care
proceedings, involving newborn babies, were identified as being particularly traumatic, with a
lack of attention, in particular, to the impact of having just given birth on the mother. Residential
settings were described as being too often focused on monitoring risk rather than providing help
or therapeutic support. Women with disabilities highlighted the disabling environments in which
assessments were carried out.


The report concludes with recommendations (I suggest reading them in detail, but I’ll just put the bullet points here, for reasons of space)

Recommendation 1: The use of adoption needs to be located and discussed in the context
of wider social policies relating to poverty and inequality
Recommendation 2: UK governments should collect and publish data on the economic
and social circumstances of families affected by adoption
Recommendation 3: The current model of adoption should be reviewed, and the
potential for a more open approach considered
Recommendation 4: There needs to be further debate about the status of adoption and
its relationship to other permanence options.
Recommendation 5: BASW should develop further work on the role of the social worker
in adoption and the human rights and ethics involved

I saw the best minds of my generation utterly baffled by nothing else will do – developments

It has been fourteen months since we last had a perplexing piece of adoption case law which scrambled the brains – which in the context of what’s been going on in adoption law since 2013 represents an almost One Hundred Years of Solitude rest from mind-f**kery.

In the words of Ser Arthur Dayne, the Sword of the Morning “now it begins”

(we are not going to hear from young Ned Stark yet, saying “no, now it ends” – we may never hear that)

Clearly everything from Re B onwards is the fault of Bran Stark and his Three Eyed Raven powers. Great job, Bran.


Re B (A child) (Care Proceedings) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/20.html

I will stress at the outset that nothing in this case says “A Court should ALWAYS do this”, it says instead that the Court, if they give good reasons for it and a careful judgment “CAN do this”

Basically, little girl B, born in spring 2016. She has a biological brother, H who was born in 2015 and adopted in 2016. Birth parents ruled out in care proceedings on B. H’s adopters wanted to adopt B.

There were family members, paternal cousins I and R, who were a realistic and viable option to care for B.

I’ll make it clear that the judgment we have gives us ABSOLUTELY NO INFORMATION about why the parents were considered not suitable to care for B or why H was adopted. We don’t have any information that would allow us to even speculate about that. Mother and father were both represented, and they were both at the appeal supporting a placement with I and R, rather than seeking to care themselves for B.

The Court at first instance was grappling with the competing arguments

(a) It is better for B to grow up with her full biological sibling for life, even if that means adoption OR
(b) It is better for B to grow up within her biological extended family, even if that means not growing up with her sibling

The prospective adopters sought to be made parties to the proceedings, but that was refused. The Courts have given guidance on this, notably in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330
http://www.bailii.org/ew/cases/EWCA/Civ/2015/983.html

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”
7.I went on to recognise (Re T, para 51) that there might be “an exceptional case justifying [a] departure from the general approach”, echoing in this respect what Wilson LJ had said in Re A, para 35:

“To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”

In effect, the Court isn’t carrying out a beauty contest between what prospective adopters can offer and what the alternatives are – the Court has to look at the issue of whether adoption is necessary without considering the particular merits that adopters bring to bear.

In this case, however, making it different to Re T, the prospective adopters were caring for a biological sibling H. So the issue wasn’t about what the qualities of the ADOPTERS were, but what the benefits to B might be of growing up with a sibling.

The relevant parts of the welfare checklist from the Adoption and Children Act 2002 are set out below

11.Those sections provide as follows:

“The court … must have regard to the following matters (among others) –

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

So the Court HAS to consider all of the family relationships that might continue for B and the value of them doing so – the parents, I and R AND H.

The Local Authority and the Guardian both urged the Court to consider that the benefits for B of growing up with a full sibling were considerable and tipped the balance towards this being a plan of adoption.

The Judge recognised the last seismic adoption authority, Re W

12.The judge next embarked upon a careful analysis of the evidence (judgment, paras 28-35). It requires to be read in full, but for present purposes I can concentrate on the evidence of the children’s guardian, which the judge described (para 34) as “very thoughtful”. She continued (paras 34-35):

“34 … She said that placement with [R] and [I] is a realistic option, they are an open and generous couple, but her professional judgment is that the advantages for [B] of a full sibling relationship outweigh the advantages of a placement with [R] and [I].

35 She was careful to point out that her recommendation did not turn on an assessment of [I] and [R], but the weight to be attached to the two competing factors set out in Sections 1(4)(c) and (f) of the 2002 Act. She had balanced on the one hand the effect of [B] having ceased to be a member of her original birth family mitigated in this case by the big plus of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she has with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so. If [H] had not already been placed for adoption in a placement willing to take [B], the Guardian would support a placement with [I] and [R]. It would have been under a Care Order because currently the placement is untested. That would result in a period of uncertainty for [B]. Taking into account the research on the importance of the sibling bond and all the circumstances of this case she attached more weight to the sibling relationship, which led her to conclude that adoption was necessary.”
13.The judge thus correctly recognised (paras 26, 34) that a family placement with I and R was a viable and realistic option. In that context, it is important to appreciate the point made by McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793, paras 70-71:

“70 With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.

71 The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

(The Court of Appeal judgment doesn’t get into the ‘fulcrum’ metaphor which permeated Re W, in particular where the balance falls in a case BEFORE placement order is made and child placed – remember that in Re W, the child by that stage had been placed with prospective adopters.
https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/ )

The trial Judge decided that it was in B’s interests to make the Care Order and Placement Order, so that B could grow up with H.

15.The judge then set out (paras 56-62) her analysis of the “pros and cons of an adoptive placement.” She began with this (paras 56-57):


“56 One advantage of adoption is that [B] will be brought up with her nearest relative, a full sibling. This would mean that she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem. The research which I have been referred to suggests that the sibling relationship is emotionally powerful and critically important, not only in childhood but over the course of a lifetime. People spend more time with their siblings than anyone else. Growing up with a sibling enables one to learn social skills, sharing and managing conflict and negotiating. The relationship can provide a significant source of continuity throughout a child’s lifetime and is likely to be the longest relationship most people experience.

57 For children going into care it is generally accepted that siblings should be placed together unless it is contrary to an individual child’s welfare needs. A shared history and experiences help self-identity and self-esteem because siblings provide support and companionship. An adoptive placement with her brother would mitigate against the loss of the relationship with her parents. This would be a lifelong relationship with her brother which would be promoted. The impact of becoming an adopted person, with the severance of legal and emotional ties with her parents and family, would also be mitigated by the shared experience of being with her brother.”
16.As against that (para 61):

“The disadvantages of an adoption placement include severance of the links with the biological family. This can mean a real sense of loss, particularly to children when they get older and realise that they have not brought up within their biological family. It can also have a negative impact on their sense of identity and belonging. It will result in a loss of [B]’s relationship with her parents because there would be no direct contact with them. There would be a probable loss of contact with the extended family because it is unlikely that [B] will have contact with her half-siblings or with [I] and [R] and their family.”
17.The judge concluded with a section (paras 63-69) headed “Decision.” She began (paras 63-64):

“63 In the final analysis the court must decide whether the advantages associated with the sibling relationship outweigh the relationship with other family members: the parents, half-siblings, [I] and the wider family. This is the balancing exercise between the factors set out in Sections 1(4)(c) and (f) of the 2002 Act. I have already set out the benefits of the sibling relationship. Although there is no existing relationship between the siblings once the children are living in the same household one is likely to develop rapidly, given their closeness in age. I acknowledge the argument that to prioritise the relationship with a brother will be at the expense of all other family relationships. They do not have an existing relationship which can currently be given weight to, but rather the potential for a unique relationship lasting throughout their lives which the Guardian and social worker say should be prioritised.

64 The reality and quality of a continuing relationship with other family members is very relevant here therefore. As I have identified already, the relationship with her parents is likely to be very limited. [Her father] is likely to be in [Africa], so contact will be indirect with possible occasional visits to [Africa] … Contact with the mother is likely to be either non-existent or problematic and potentially disruptive and unsettling. [B] has no existing relationship with her half-siblings, but only the potential for one. That is likely to be very limited. Those children are all quite a bit older than her and may or may not develop a bond.”
18.She continued (paras 66-67):

“66 When considering [B]’s welfare throughout her life the scales tip in favour of prioritising the relationship with her brother for all the positive advantages that will bring her set out above. What makes this case particularly difficult and finely balanced is the cultural dimension. However, a close examination of what benefits [B] would actually derive from a placement with [I] and [R] reveals that [and she then set out various matters which I do not propose to repeat as they might lead to the identification of the family. She went on:] The practicalities and financial cost of frequent visits to [Africa] may prove problematic.

67 Whilst a placement with [H] does not provide the cultural match which a placement with [I] could offer, the adopters have some cultural similarities and living with her brother would boost her identity because of growing up with her closest relative. His heritage and identity and early childhood experience of a foster placement at birth and then one stable placement afterwards, exactly mirrors her own. All this has led me to conclude that this is the over-riding requirement pertaining to [B]’s best interests throughout her life. Having reached that conclusion, I am satisfied that an adoption order is necessary to meet [B]’s needs and proportionate in all the circumstances of the case.”
19.The judge concluded as follows (paras 68-69):

“68 Whilst this is more interventionist than a placement with [I] and [R], it has the benefit of permanency now. There will be no further delay. It will avoid the testing out of a placement with [I] and [R] and reduce the risks and uncertainties for [B] all of which adds weight to the decision that I have come to.

The father and I and R appealed – understandably on the basis that the Court had not squared the case with the “nothing else will do” principle – but rather had decided that Placement Order was the better of two choices.

The Court of Appeal, lead judgment by the President, praised the careful and analytical approach of the trial Judge and upheld the decision. It was permissible for a Judge to give more weight to the option of B being placed with a sibling than B being placed within the family (even where there was a viable and realistic alternative family placement)

23.The central core of the father’s complaint relates to the judge’s application – in his counsel’s submissions, her misapplication – of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the ‘better’ placement. As the passages from her judgment (judgment, paras 20, 21 and 25) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.

24.How else was the judge to proceed? She was confronted with the fact – the reality – that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under section 1(4) and in particular section 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.

25.As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B’s life must fall in the credit side of the balance sheet in relation to placement with H’s adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.

26.Complaint is also made, in particular by Ms Fottrell and Ms MacLynn, that the judge never grappled with the question of whether adoption per se was required for B and, in consequence, that she truncated the adoption process and, in effect, approached the case as if she was deciding an adoption application and on the assumption that, immediately following the making of the placement order, B would be placed for adoption by H’s adoptive parents. I do not agree. The judge was well aware that she was considering only the making (if appropriate) of care and placement orders as a prelude to the entirely separate adoption proceedings which, if she made those orders, would no doubt follow in due course. And, in circumstances where the fact and reality was that H had been adopted by those who were offering a similar placement for B, the distinction between adoption per se and adoption by H’s adoptive parents is more apparent than real.

27.The father complains that the process adopted by the judge meant that she ended up weighing the ‘known’ uncertainties in respect of the proposed kinship carers against the certainties of the adoptive placement. That, it is said, was an unfair half-way house; the judge, on this approach, should have embarked upon a full welfare evaluation and comparison of each prospective placement. I do not agree. The judge knew all that she needed to know about the possible placement with H’s adoptive parents to be able properly to carry out, and in a manner compatible with Re T, the task she was embarked upon. Indeed, to go further into that aspect of the matter than she did would have risked offending against the principle in Re T.

28.In relation to the other grounds of appeal I can be quite brief. The father complains that the judge erred in prioritising B’s relationship with H over her relationships with her wider family, in placing too much emphasis on the sibling relationship, and in attaching too little weight to ‘nothing else will do’. I do not agree. The judge did not prioritise either of these placements – both, it is to be noted, family placements – over the other. She treated each as being viable and realistic and carefully evaluated the competing evidence and arguments before coming to her conclusion. The fact that her conclusion favoured X rather than Y does not mean that the judge was prioritising X over Y. Her conclusion that, in all the circumstances, B’s future relationship with H throughout their lives tipped the balance and was determinative of the outcome, was, in my judgment, securely founded in the evidence the judge had heard and, as I have already said, was plainly open to her.

29.I can take the two remaining grounds – that the judge placed too much weight on the ‘untested’ nature of the placement with I and R while failing to acknowledge that the placement with H’s adopters was equally untested; and that she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B’s best interests – together. The judge, in my judgment, was entitled to have regard to these factors, and it was for her to determine how much weight to attach to them. In fact, as we have seen, she did not attribute determinative weight to other of them. As her judgment makes clear (judgment, para 68) their impact was merely to “add … weight to the decision that I have come to.”

This is a very difficult one. I have no doubt that prior to 2013, the decision to place B with her sibling (having ruled out her parents for reasons that we don’t know about) would have been an arguably correct decision both on the facts and the law. I don’t see how it does square with Re B.

Let’s remind ourselves what the test for making a Placement Order is, as set down by the Supreme Court

“only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

But also the apparent dilution of that by the Court of Appeal in Re W 2016 that welfare analysis and evaluation is actually the be-all and end-all

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons

I think that it is POSSIBLE for a Court to decide that, for B, her overriding requirement is to be placed with her sibling, and no other placement option is able to deliver that and therefore that nothing else but adoption will do. But neither the Trial Judge nor the Court of Appeal actually spell that out.

The case reads like a straight welfare shootout (a well-considered and thoughtful shootout, but one nonetheless which doesn’t really engage with the spirit or the letter of Re B)
And of course, there’s a counter argument to that. If the Courts are saying that placement with a sibling is such a powerful factor that it can override other factors, then what happens with all those cases where the LA care plan is to split a sibling group and the only way they can stay together is to be with a parent – even where the quality of care would fall below ‘good enough’

If having the sibling relationship endure is a reason to discount ‘viable and realistic’ family members on the one hand, then why is it not a reason for preferring a family placement to a placement in care where the family placement would keep them together?

OR, as happens frequently – one child is young enough to be adopted, but another is to be placed in foster care – and the parents understandably would want both children placed together. In those scenarios, unlike B and H, the sibling group will actually have met and have a relationship.

[These are all cases where the well-known authority of Sauce for Goose v Sauce4Ganda 1621 may be deployed]

(I’ll stress again that the Court of Appeal are not saying here that the sibling placement MUST triumph over family placement or that it MUST be given greater weight – they are saying that the Judge in this case was ABLE to decide this the way she did, because she had very carefully thought about the evidence and the law. Another Judge could decide the reverse in a similar set of facts, provided they very carefully think about the evidence and the law. It is NOT sibling rights beat family rights. It is NOT that. )

I think the treatment of ‘nothing else will do’ is a bit of a Jedi hand-wave here. We are getting closer and closer to the old state of play – which was ‘what decision is the best for the child’s welfare’ and farther away from what the Supreme Court were talking about with adoption and placement orders being a very high bar that the State have to meet.

In the meantime, expect any case where a sibling has previously been adopted to have urgent enquiries being prompted by the social worker or Guardian as to whether those adopters put themselves forward for this child. The Court CAN take account of it if there’s a definite commitment to do so (even though they might not be matched by Panel). What is the Court going to do if the adopters of the siblings say that they are ‘open to it’ or ‘thinking it over’? Can they give that any weight at all?

Learning disabilities – an interesting and sad judgment

This judgment is not binding upon anyone not directly involved in the case, being a decision of a Circuit Judge, His Honour Judge Dancey.

But I think that it provides a very accessible summary of the guidance on working with parents with learning disabilities and also it contains within in a judgment that is written directly for the parents, which I’ll set out below.

The central issues in the case were – were the assessments fair and did they properly take account of the guidance AND if the parents needed X hours of services a day (in this case said to be 12-16 hours per day) ought they be given that to keep the family together or is that an unrealistic expectation?
A Local Authority v G (Parent with Learning Disability) (Rev 1) [2017] EWFC B94
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B94.html

Speaking as a Local Authority lawyer, cases involving learning disabilities are the very hardest cases to deal with – you are dealing with parents who have absolutely no intention to harm or mistreat a child and are doing their absolute best – usually by the end of the case the parent could have done nothing more to show the Court their love and desire to parent. Yet so often they have unhappy endings, often this being more common than cases where parents have behaved selfishly, foolishly or abusively but have the ability and wherewithal to stop doing that. It feels like there should be something for these parents, who have done nothing wrong other than to demonstrate that they have limitations outside of their control. I don’t know what that something should be, and I have no idea what that something would cost, (as my friend Becca Carr-Hopkins is fond of saying to me “and what would that LOOK like?”) but they are the very worst hearings to do.

I would rather have four awful paedophile cases than a case where the parents have tried their best but their best is not enough because of the disability they were born with. People who have already had a difficult hand dealt to them in life, who have to be told that although they are not bad people and have all the love in the world the State is about to make their painful and difficult life still more painful and difficult. I wish central Government would make funding available so that there could be something to properly support parents of this kind.

Anyway, I’ll start with the portion of the judgment written directly for the parents – I have praised Jackson LJ in the past for doing this and it is nice to see his lead being followed

ANNEX A

1.C and D have two children, K aged just 3 years and T aged nearly 20 months. C also has an older child A whose father died when she was 3.

2.The local authority say that C and D cannot look after the children well enough.

3.Sadly C has a learning disability and is partly deaf. This means that she struggles to look after the children. D doesn’t have a disability. He is C’s carer. He has not really supported C to look after the children as he should have done.

4.A has already gone to live with Mr and Mrs N. They are now her special guardians. A is happy there and wants to stay. C and D accept that. They are not asking for A to come home.

5.The local authority ask me to make orders putting K and T in their care. They also ask to be allowed to place K and T for adoption. That would mean ending K and T’s ties and contact with C and D completely. They would become members of a new family.

6.C and D don’t agree. They say they could look after K and T if they were supported properly.

7.I accept that C and D couldn’t look after the children as well as they should. I am not going to write down here everything I have heard about. But K and T have not been looked after properly. C and D did not watch out for K and T well enough. Also they did not have good routines. Sometimes they were dirty and missed out on meals. But also C and D found it difficult to get in tune with K and T’s emotional needs. Sometimes they didn’t pay them much attention. K got frustrated. She banged her head and bit people. T didn’t cry much or demand much attention. This was because he wasn’t getting much attention.

8.A had to look after K and T more than she should have. It was like she became a parent to them. She also worried about C. These were things a child shouldn’t have to worry about. A thinks she has lost out on some of her childhood.

9.I know that C and D looked after A well enough. But I think she had to start looking after herself when K and T came along. C and D cannot look after two very young children. They have different needs which C and D struggle with.

10.The local authority tried to help C and D with support. C and D didn’t think all the support was of the right kind. I agree the local authority could have done this better. The people who worked with C and D needed more training about learning disability. D could have done with more help as C’s carer. He could have helped himself more too.

11.C and D both had depression. I think that was a lot to do with the stress of trying to look after three children. Their depression has got better since they have not had the children. They have made some improvements too. The flat looks very nice now. It used to be cluttered and wasn’t very clean.

12.The problem is that C can’t meet the needs of the children on her own. D doesn’t give her the support she needs. I don’t think C or D really understand how worried the local authority are. I know they want to work with people to make things better. But I don’t think C or D can really change things in a lasting way even with support. I think if the children come home things will get worse again. C and D will probably get too stressed. And that might mean they get depressed again.

13.I have decided that the children need care that C and D cannot give them. They would need so much support that other people would end up parenting K and T instead of C and D. K and T would not know who is their main carer. That would probably cause them problems in how they make relationships.

14.So I have decided I cannot let the children come home. It means that I must make an order putting K and T in the care of the local authority. I must also let them place K and T for adoption.

15.It is very sad to have to make this decision. I know how much C and D love their children. They have come to court every day. They have listened carefully and patiently. They have tried their very best to help me. I thank them very much indeed. The children will know that C and D did their very best to keep them.

16.But I have to decide what is best for the children. And I have decided that nothing else will do.

The judgment also provides a very clear and helpful summary of both the law and the practical guidance, and I think it is a really good source for this

Parents with learning disability/Parenting with support
35.Where a parent has a learning disability the court must make sure that parent is not being disadvantaged simply because of their disability. The essential question is whether the parenting that can be offered is good enough if support is provided. In Re D (A Child) (No 3) [2016] EWFC 1 Munby P endorsed and recommended what was said by Gillen J in Re Guardian and A (Care Order: Freeing Order: Parents with a Learning Disability) [2016] NIFam 8. Those cases establish a number of important points relevant in this case:

i) Parents with learning difficulties can often be ‘good enough’ parents when provided with the ongoing emotional and practical support they need.

ii) The concept of ‘parenting with support’ must underpin the way in which courts and professionals approach parents with learning difficulties.

iii) Courts must make sure that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against parents without such difficulties. To that end parents with learning disability should not be measured against parents without disability and the court should be alive to the risk of direct and indirect discrimination.

iv) Multi-agency working is critical if parents are to be supported effectively and the court has a duty to make sure that has been done effectively.

v) The court should not focus so narrowly on the child’s welfare that the needs of the parent arising from their disability, and impacting on their parenting capacity, are ignored.

vi) Courts should be careful to ensure that the supposed inability of the parents to change is not itself an artefact of professionals’ ineffectiveness in engaging with the parents in an appropriate way.
36.Ms Harman says there are some features of this case that distinguish it favourably from Re D – (a) these parents cared for A for some years without concerns about her care (so there is a history of childcare that did not exist in Re D) (b) there have been no concerns about the children’s development and they have met milestones and (c) these parents are keen to accept advice and support.

37.Ms Harman also refers me to Kent County Council v A Mother [2011] EWHC 402 recognising (a) that parents with learning disability need to be supported and enabled to lead their lives as full members of the community, free from discrimination and prejudice, (b) a wider acceptance that people with learning disability may in many cases, with assistance, be able to bring up children successfully, (c) the need for professionals working with families and children to be trained to recognise and deal with parents with learning disabilities and (d) the need for Government Guidance to be followed.

Good practice guidance on working with parents with a learning disability (updated September 2016) DoH/DfES
38.The Good Practice Guidance was issued to address a lack of evidence of effective joint working between adult and children’s services. I gratefully adopt and adapt the summary of the Guidance set out by Ms Harman in her written submissions:

i) Services need to help enable children live with their parents (as long as this is consistent with their welfare) by providing the support they and their families require. This accords with the general duty of local authorities under section 17(1) of the 1989 Act to provide a range and level of services to safeguard and promote the welfare of children in need and their upbringing by their families (insofar as it is consistent with their welfare).

ii) Good practice is also underpinned by an approach to parenting and learning disability which addresses needs relating to both impairment and the disabling barriers of unequal access and negative attitudes. Such an approach recognises that:

… If the problem is seen as entirely related to impairment and personal limitations, it is difficult to understand how to bring about positive changes for parents and their children.

… If the focus is, instead, on things that can be changed (such as inadequate housing) and support needs that can be met (such as equipment to help a parent measure baby feeds), there are many more possibilities for bringing about positive improvements. [p4]

iii) There are five key features of good practice in working with parents with learning disabilities: [pii]


• accessible information and communication

• clear and co-ordinated referral and assessment procedures and processes, eligibility criteria and care pathways

• support designed to meet the needs of parents and children based on assessments of their needs and strengths

• long-term support where necessary

• access to independent advocacy

iv) Adult and children’s services, and health and social care, should jointly agree local protocols for referrals, assessments and care pathways in order to respond appropriately and promptly to the needs of both parents and children. [1.2.1, p8].

v) It is important that services understand who is to take the lead on assessments:

• where there are no welfare concerns but adults need assistance with routine tasks of looking after children, adult learning disability services should take the lead on assessment and care planning

• where parents need support in the medium to long term adult learning disability and children’s services jointly co-ordinate assessment and care planning

• where intervention is required to prevent children suffering impairment to their health or development or significant harm, children’s services lead assessment and planning with specialised input from adult learning disability services (1.2.5 p12).

vi) Services in contact with parents with learning disabilities should use appropriate assessment materials and resources and/or access specialist expertise. Failing to do so will result in the parent receiving an unfair and therefore invalid assessment, in breach of their legal rights. [1.2.6, p13].

vii) Where a parent has a learning disability it will be important not to make assumptions about their parental capacity. Having a learning disability does not mean that a person cannot learn new skills. [p13].

viii) In the case of parent support services, an assessment of a parent’s learning needs and circumstances should inform the support provided to develop parenting skills. Research indicates that – for parents with learning disabilities – the key elements of successful parenting skills support are:

… clear communication, and ensuring parents have understood what they are told

… use of role-play, modelling, and videoing parent and professional undertaking a task together, for discussion, comparison and reflection

… step by step pictures showing how to undertake a task

… repeating topics regularly and offering opportunities for frequent practice

… providing/developing personalised “props”: for example, finding a container which will hold the right amount of milk for the child so that the parent does not have to measure out the milk. [p16]

ix) A range of services is required. All families are different and at different stages of their life cycle families require different types of support. [1.3.3, p16]

x) A need for long-term support does not mean that parents cannot look after their children. [1.4.1, p20]

xi) Although a parent with learning disabilities can learn how to do things, their cognitive impairment will not go away. Just as someone with a physical impairment may need personal assistance for the rest of their life so a person with learning disabilities may need assistance with daily living, particularly as new situations arise. Secondly, children and their needs change. A parent may have learned to look after a baby and young child and be coping well. However, as the child enters adolescence other support needs may arise. [p21]

xii) Where a need for long-term support with parenting tasks is identified, it should form part of the community care and/or child in need plan. [1.4.2, p21]

xiii) Advocacy and self-advocacy should be made available to help parents access and engage with services. The Care Act 2014 imposes a duty on local authorities to provide an independent advocate where an individual would otherwise have substantial difficulties in being involved in processes such as their own assessment and care planning. [p22]

xiv) The Equality Act 2010 imposes a duty on local authorities to make reasonable adjustments so as to eliminate discrimination and to advadvance equality of opportunity; the provision of an independent advocate may assist with this. The Human Rights Act 1998 entitles a parent to participate fully in the process; this includes stages prior to any formal legal proceedings being initiated. [p22]

xv) It is particularly important to avoid the situation where poor standards of parental care, which do not, however, meet the threshold of being of significant harm to a child, subsequently deteriorate because of a lack of support provided to the parent. A failure to provide support in this type of situation can undermine a parent’s rights to a private and family life, and may also contravene an authority’s disability equality duty. [p25]

xvi) Families affected by parental learning disability are likely to have an on-going need for support. [p27]

xvii) When children are placed in foster care, parents should receive practical support to maximise their chances of improving their parenting capacity. Without this, parents will have little chance of reunification with children who have been removed from their care. [2.2.12, p29]

xviii) Both children’s and adult workers will need specific training in order to respond appropriately to the needs of families affected by parental learning disability. Child protection training strategies should include adult learning disability services. [p38]

xix) It is essential that assessments, training and support are both timely and appropriately tailored to the parent with a learning disability. Failure to build in, from the outset, the extra time that a parent with a learning disability needs in order to learn and understand, puts that parent at a significant disadvantage in child protection proceedings, compared to parents without a learning disability. [piii]

xx) There must also be joint working across all the agencies (in particular adult and children’s services) and appropriate and effective communication permitting parents to participate fully in the process. [piii]

Turning now to the case in question, the Judge did uphold several of the criticisms made by the parents of the assessments and support

Discussion and conclusion
215.There is in my judgement considerable force in the criticisms made by Ms Harman of the assessments of the parents and the support given to them. In particular:

◦the local authority does not have, as it should, a protocol for dealing with parents with learning disability (or not one that the professionals were able to tell me about, which amounts to the same thing) and that reflects in the approach in this case;

◦a protocol would focus on the Guidance which has not always been followed in this case – and to describe the Guidance as a ‘counsel of perfection’ is to give a charter to ignore it which should be robustly challenged;

◦those working with the mother should have been trained in dealing with parents with learning disability which would have given them better direct understanding during assessment and teaching how best to work with her and how to deliver the right support;

◦I do not consider it necessary to have had somebody from the ALDT present at every session; what was required was sufficient training of those that were there (and not just reliance on their experience of dealing with people with learning disability);

◦there has not been enough focus in this case on planned support and a positive strategy to try and keep this family together:

◦rather LW’s focus (see paragraph 193(h)(v) above) was on a solution for the children within their timescales rather than supporting the parents – the two are not necessarily inconsistent if support is provided in a timely and efficient manner;

◦in fact there were unacceptable delays in carrying out assessments and establishing what support was needed, creating a conflict with the children’s timescales;

◦JT said that the parents had not put forward proposals as to the actual support the various agencies could offer – this ignores that it is the local authority which should be making an assessment of the support that can be offered and that should include what is available from outside agencies as well as inhouse support;

◦there could and should have been more focus on repetitive teaching using role-modelling and example as recommended by Dr K (I accept the health visitor used these techniques but there was little hard evidence of it in the FAST work);

◦a more co-ordinated response to the father’s evident need as a carer of the mother should have been put into effect earlier with a support package rather than leaving him to his own devices;

◦work with the parents should have continued after the children were removed not least to assess whether they were making necessary changes;

◦it was unfortunate that, as in many cases, these parents have had to deal with a number of different social workers, five in this case – that has an impact both on the need for vulnerable parents to re-build new relationships with professionals before and during stressful proceedings and professionals’ continuity of knowledge and experience of the family.

216.Having accepted those criticisms I also accept the following points:

◦all the professionals did their best;

◦the Guidance was followed to the extent that Children’s Services took the lead and consulted with the ALDT as the specialist service;

◦the FAST workers and social workers sought to follow the advice given by the ALDT about how best to work with the mother;

◦the materials they used – picture books and charts – were not in themselves inappropriate, particularly given the presence in the home of the father and his supposed ability to support the mother – it is just that more was needed by way of direct example and repetition;

◦lots of support has in fact been given to the family as set out by Mr Howard, I just question whether it might have been more structured and planned had the Guidance been followed and a protocol been in place;

217.I do not see that the criticisms are met simply by saying that one of the parents did not have disability. The fact is, as this case shows, that whenever working with a parent with a learning disability, the Guidance should be followed.

There’s only one part of the judgment that I don’t quite agree with, and that’s here

248.I do not read Re D or the Guidance as requiring local authorities to provide support to the extent that it amounts to substitute parenting. If a parent had such a physical disability as to require substitute parenting then I would expect the result to be the same, so I would not accept that this conclusion is discriminatory of parents with learning disability.

The first bit, I think is absolutely right – I don’t think Re D or the Guidance says that a Local Authority has to provide the sort of support that means that really a parent is not providing any real parenting but the parenting is being done by professionals and support agencies with the parents just being present. It is the comparator with physical disabilities I am not sure about.

If a parent had such a physical disability as to require substitute parenting then I would expect the result to be the same, so I would not accept that this conclusion is discriminatory of parents with learning disability

I don’t know. If a parent was blind, and needed another adult in the home to ensure that the child wasn’t putting themselves in harms way, would a Local Authority be issuing care proceedings because the blind parent doesn’t have another adult in the home? Would threshold even be met on that basis? I think it is wrong, repugnant even that there is a two-tier approach between physical disability and learning disability, but I do think that there is one.

Consent to adoption where the parent is themselves still a child

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

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

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


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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

HELL YEAH

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

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

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

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

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

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

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

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

b) Understand the implications of not pursuing the decision;

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

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

e) Be able to communicate that decision.

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

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

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

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

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

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

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

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

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

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

b) Adoption is final, and non-reversible;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Someone had blundered

 

I’ve written many times about how unusual it is for a Court to revoke an adoption order. If memory serves, I have only found four examples before – one last year where the adopters physically abused the child who returned to birth mother and who felt very strongly about wanting the order revoked, one where a step-parent adoption was made where the mother had not told the birth father that she was terminally ill and if he had known that he would not have consented and I can’t remember the details of the other two – they were both from the 1970s.

 

This is the fifth one.  Which also, bizarrely, became the sixth one as well. This child may well, in due course, have the unusual and unique history of being adopted twice by the same people.

 

RE J (A Minor: Revocation of Adoption) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/2704.html

And it is just frankly, a mistake.

It seems that there was a hearing before a Circuit Judge. The mother attended, wanting to oppose the adoption. There was no social worker present, and it appeared that the Judge became muddled as to what application she was dealing with.

 

  1. The appropriate course might have been to impress on the mother the complexity of her application and her need to seek legal advice and/or representation. In any event, given the emphasis on ‘due process’ which operates, by definition, reciprocally between the parties, the mother ought to have been required to file evidence and directions given accordingly. From this, would have stemmed further directions for a statement in response by the Local Authority, appointment of a CAFCASS guardian and an inter partes re-listed hearing.

 

  1. It is abundantly clear, I regret to say, that the Judge became confused as to what application she was hearing and what procedure she was following. The Judge adjourned to consider her decision, handing down a written judgment on 3 October 2017. Very properly the Judge addressed the criteria in Section 47(5), concluding that the mother had failed to demonstrate sufficient change to justify ‘reopening the issue of the plan for [J]’. She observed that J was happily placed with devoted carers and that his placement ‘has offered a boost to his positive development’ and that ‘with every week that passes he is progressing well’. The Judge went on to note that the mother’s own assertion that she had stopped drinking alcohol (one of the causes of her parenting deficits) for a period of three months was insufficient to establish the first element of the test in Section 47. Judge Penna noted ‘there is a substantial risk that I would be setting her up to fail’. The Judge went on to consider the benefits of J’s placement in the context of the wider discretionary exercise and concluded that J’s mother had ‘not shown sufficient change for me to grant her leave to oppose the adoption’.
  2. Had the Judge stopped there all might have been well but, inexplicably she proceeded to grant an adoption order to the applicants, at this first directions hearing. She manifestly had insufficient material before her to make the Order which is perhaps the most draconian in the Family law canon. This was a complete aberration and plainly flawed. The Judgment was handed down on the 9 October 2017, circulated both to the parties and to the Registrar General, in order to make an entry in the Adopted Children Register in the form specified by regulations. It must be stated unambiguously that the Order provided that ‘the child is adopted by [K] and [N], the applicants.’ Finally, the Court directed that the entry in the Register of Live Births be marked with the word Adopted. As I understand it, J’s carers now believe him to be their adopted son.

 

 

When the Local Authority legal department received the order, they immediately realised that something had gone wrong. They contacted the Judge, who realised her mistake, but compounded the error by revoking the Adoption Order (which she did not have power to do. She perhaps had not realised that she was exceeding her power and also that this was only the fifth time that an adoption order had been revoked)

 

  1. A number of basic principles need reiteration. Once a child is adopted this entirely severs all legal ties with the birth family and introduces a new legal parental relationship with the adopter’s family. The Court does not make an adoption order unless it is satisfied both that nothing else will do and, for the particular child, nothing else is better. It follows, that the Court will be similarly cautious when contemplating a revocation of an adoption order which is intended to be final and lifelong. Such revocations were described by Pauffley J in PK the Mr & Mrs K [2015] EWHC 2316 (Fam) as ‘highly exceptional and very particular’. Their ‘exceptional’ nature has been repeatedly emphasised see Re. B (Adoption: Jurisdiction to set aside) [1995] Fam 239, Re. Webster v Norfolk County Council and the Children (by their children’s guardian) [2009] EWCA Civ 59, Re. W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609. I draw the inference that Judge Penna revoked the Order in recognition of her error on the basis of the facts and chronology that I have outlined. They permit of no other interpretation. The Judge did not set out her reasoning in any additional judgment.
  2. More problematically, the process of revocation requires the High Court to invoke its inherent jurisdiction. This signals both the rarity of the Order and, inevitably, its unavailability to Judge Penna sitting in the County Court. As it transpired, before the Order was drafted, or sealed, the matter came to the attention of HHJ Newton, the Designated Family Judge. Judge Newton informed me of the situation and transferred the case to me on 23 October 2017. Judge Newton’s prompt action was doubtless driven by her recognition of the real potential for distress to both the birth parents and the adopters in consequence of what has occurred. An equally swift response is therefore required from me. I have not requested the attendance of the parties and have been able properly to deal with this case administratively,
  3. It strikes me that there are two equally legitimate alternatives here, either to refer the matter to the Court of Appeal or to address it myself in this Court. The latter course has the obvious attraction of avoiding delay. Primarily however, I have come to the conclusion that as Judge Penna’s purported Revocation Order was outside her powers, thus plainly void and as it was intercepted before being drawn or sealed, consideration of revocation may properly be addressed in the High Court. On the facts of this case, probably uniquely, I am also satisfied that the Court can and indeed should consider revoking the Order of its own motion.
  4. For the reasons which are set out above, I consider the circumstances in which this adoption order was made are ‘highly exceptional and very particular’ to use Pauffley J’s elegant and succinct phase. Whilst the Law Reports do not reveal this situation as having occurred before, there are some similarities with Re. K (Adoption & Wardship) [1997] 2 FLR 221. There the Court of Appeal indicated that where an adoption procedure had been fatally flawed, an application to revoke should be made to the High Court. Here there was, in short, a complete absence of due process and a wholesale abandonment of correct procedure and guidance. That is a clear basis upon which to consider whether the Order should be revoked.
  5. I am profoundly conscious of the impact of my decision on both the birth parents and the prospective adopters both of whom will be distressed and unsettled by this uncertainty. I would however, emphasise one important and, in my judgment, inalienable right, namely, that of J to know in the future that the process by which he may have been permanently separated from his family was characterised by fairness, detailed scrutiny and integrity.

 

 

So, this was not the finest hour of the family Court.  But by way of scant consolation, I will tell you all about an Australian Court, where the Court was deciding whether a fall from a horse constituted a “motor accident”  (the horse was startled by a car horn and bolted).  The judgment in the case was 138 pages long, which seems long, but perhaps it was warranted. What was NOT warranted, was the Judge reading the whole thing aloud to the parties, a process which took 17 HOURS.

FOUR FULL DAYS of listening to a judgment.

 

And the Judge in question, to keep the suspense going, didn’t hint at the result until part way through day three.

I appreciate that I am a sad legal geek, and there are many judgments that I really enjoy reading. But even I would baulk at sitting and listening to someone read out a judgment over 17 hours.

If Mr Justice Peter Jackson was delivering a judgment on conjoined twins, one of whom was a Jehovah’s Witness and one who was Plymouth Brethern and there were allegations of Fabricated or Induced Illness, AND the Judge had managed to deliver the judgment via séance with Richard Burton reading it out loud on his behalf (with occasional bursts of Peter Sellers doing voices of any witness who was quoted verbatim), I’d still have had enough after a day. Four days would be excessive even for that.

https://loweringthebar.net/2017/10/judge-read-138-page-opinion.html

 

And oh, by the way, the Judge in that case was overturned on appeal, so a complete waste of four days.

 

https://www.caselaw.nsw.gov.au/decision/58ec7f40e4b0e71e17f58abe

 

It is also of concern, as Payne JA has pointed out, that the primary judge made, at best, minor reference in his reasons to the framework within which the legal questions posed for consideration fell

 

If you’ve made me sit and listen for four full days, I don’t expect the legal framework to have only been given MINOR REFERENCE….

 

Here come the Hofstetter

Extraordinary, juice like a strawberry

The Court of Appeal in Re S-F (A child) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/964.html

Manage to go through the gears from – it might be helpful to see the Agency Decision Maker’s Hofstetter decision record as to how the decision as to adoption was reached to ‘it is good practice for the LA to provide that’ to ‘it is bad practice if they don’t provide it’ in the space of a single paragraph.

So from here on out, it is bad practice for a Local Authority not to file and serve the Hofstetter record when they lodge a placement order application.

Also, I’ve got this gold ring with writing on it that I need you to get rid of if you have a moment, the one that says “One ring to rule them all” – so if you could just dispose of that for me, that’d be just peachy. Thanks!

One does not simply walk into Mordor Family Proceedings Court…

(The Hofstetter document case http://www.bailii.org/ew/cases/EWHC/Admin/2009/3282.html Hofstetter and Another v London Borough of Barnet 2009

132.I appreciate that the Agency Decision Makers are very busy and the potential advantages both in saving time and resources, and in avoiding arguments based on differences of expression, that flow from them adopting the reasons for a recommendation. But in my view before that course is taken the Agency Decision Maker must consider with care, in the light if his or her role and the wider information he or she has, which of the reasons underlying the recommendations he or she is adopting and why this is the case.

133.Perhaps particularly when, as here, the recommendation for the qualifying determination and the decision in the case are the same, I suggest that, with a view to ensuring that the Agency Decision Masker approaches the making of the decision in the case, and thus a reconsideration of the case, with an open mind, and as the decision maker, it would be a good discipline and appropriate for him or her to:

i) list the material taken into account,

ii) identify the key arguments on both sides,

iii) ask whether he or she agrees with the process and approach of each of the relevant panels and is satisfied as to its fairness, and that both panels have properly addressed the arguments,

iv) consider whether any information he or she has that was not before a relevant panel has an impact on its reasons or recommendation,

v) identify the reasons given for the relevant recommendations that he or she does, or does not, wish to adopt, and

vi) state (a) the adopted reasons by cross reference, repetition or otherwise and (b) any further reasons for his or her decision, when informing the prospective adopters of that decision.

This is a fact and issue sensitive exercise. But in my view it, or a similar approach, should assist the Agency Decision Maker to identify the issues, the factors that have to be weighed and importantly his or her reasons (rather than those of others) for the decision that he or she is charged with making as the Agency Decision Maker )

Here is what the Court of Appeal say (in Re S-F) about it now being bad practice if the ADM minutes of the decision making process are not filed and served. Note the line about the record being ‘susceptible of cross-examination’


11. The permanence report and the agency decision maker’s record of decision contain the required analysis and reasoning which is necessary to support an application for a placement order. They are disclosable documents that should be scrutinised by the children’s guardian and are susceptible of cross examination. It is good practice to file them with the court in support of a placement order application. Given their importance, I would go further and say that it is poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the local authority’s decision to apply for a placement order.

Ryder LJ also reminded practitioners about Re B-S (in case anyone has forgotten it) but does so with punchy language

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

And stresses that the evidence and analysis has to be centred around the particular child, not merely relying on general thinking for children of similar ages and characteristics. What is right for THIS child, and why is that said to be right?

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

The Court of Appeal also criticised the LA for stopping their family finding once they were aware that an appeal was pending – the appeal took ages to be heard, and therefore the Court didn’t have up to date evidence about the family finding process. (Candidly, I’d have done the same as this LA – you’re not going to find any matches for a child whilst there’s an appeal pending, and you can’t do anything with a potential match even if you find one. But don’t do that in the future – keep up the fruitless and time-consuming search for a match, just so you can tell the Court of Appeal that no prospective adopters want to be matched with a child whilst they know there is an appeal pending and that nobody knows how long the appeal process will take)

5. It is a matter of regret that in the six months that has intervened between the order complained of and the appeal hearing the local authority did not see fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement. The appeal after all is being heard at a time when the local authority would have abandoned its search for adoptive carers, the child having been with his foster carer for six months. The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority’s planning process over the same time period