Category Archives: adoption

Role of the appellate Court

Posted on May 12, 2014 by suesspiciousminds

This case was decided in December but only just reported. It relates (of course) to an appeal arising from a failure of the Court at first instance to properly balance the issues and pros and cons in a Placement Order case.

 

Re B (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html

 

This one is interesting because it involves an appeal initially from what was the Family Proceedings Court (and is now Tier One of the Family Court, or Tier Three of the Family Court, nobody seems absolutely sure whether a higher number is good, or bad, we just know that District Judges are in the middle and are Tier Two).   It was one of my Burning Questions post Re B-S months ago, as to whether the expectations of Re B-S bore down on the Justices as they did on the Circuit Judge  (which seems to be common sense, but there’s existing authority that you can’t expect the same degree of analysis and rigour from three lay Justices as from one Judge).

The first time this issue came up in appeal, it wasn’t decided because the Court of Appeal wisely and sagely decided that the Justices reasons were marvellous rather than flawed  (one of those moments when you know you’ve lost your appeal in the first ten seconds), and the case wasn’t a reported one.

However, second time lucky

 

It is common ground that the FPC’s Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority’s care plan and the court’s orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates’ Reasons betrayed, the FPC adopted a ‘linear approach’ to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B’s long term future care.

 

  • It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:

 

 

i) they adopted a linear approach to their decision making;

ii) they failed to carry out a welfare analysis of the realistic options for B’s long term care; and

iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.

 

  • In this case and having regard to the first court’s Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates’ failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger’s formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.

 

That’s pretty damn clear authority for the fact that Justices Facts and Reasons in an adoption case had better damn well cover all the requirements of Re B and Re B-S, otherwise they have done it wrong.  [It has taken SIX MONTHS for any of my Burning Questions https://suesspiciousminds.com/2013/11/01/burning-questions/ to be answered, and now I’ve had two in a week]

 

Anyway, the Court of Appeal was far less interested in satisfying my innate curiousity and more interested in the actual appeal in question, which was – having found that the Justices had got their decision wrong on a number of levels, should the Circuit Judge who heard the appeal have sent the case for re-hearing, or just made the decision herself and done it right? What happened in this case was that the Judge did deliver a judgment, containing all of the necessary ingredients, had done the job properly and made orders, that the father, though Mr Weston QC appealed.

 

Mr Weston, for the father was arguing broadly that having not heard the evidence, the County Court ought to have stopped at the point where they resolved to grant the appeal and that the Justices reasons were so flawed as to make their decision wrong, and not go on to “fill in the gaps”  themselves.  And further that even if the Judge was right to attempt it as a general principle, to do so in this case ignored the gaps in the evidence that would make such a process unfair.

 

  • In this case, Judge Clarke held that the magistrates reasoning was insufficient and thereby wrong and the question arises whether a judge was permitted to ‘fill the gaps’, provide her own reasoning or substitute her reasons for those of the first court.

 

 

 

  • Mr Weston for the appellant makes a strong and clear case about what he submits was the irregularity of what happened. He submits that the judge rightly decided that the FPC had to consider the substance not just the letter of the statutory provisions. They had to undertake an analysis rather than pay lip service to the words. He submits that the FPC could not do that because the evidential materials were missing. Not only were they missing in the FPC, but at the hearing where the judge conducted her own analysis and evaluation, the evidence was still missing. Any new evidence relating to new issues of fact and changes of circumstance (and there was at least one new and potentially significant allegation that may have been relevant) or the implications of the same for the welfare analysis and proportionality evaluation, was also missing. Furthermore, the benefit of listening to and appraising the witnesses including the parents was lost in a procedure which was not a true re-hearing. Mr Weston accordingly submits that the procedure adopted was wrong and that its consequence was a welfare analysis and a proportionality evaluation that were inevitably flawed.

 

 

 

  • Mr Weston also submits that a judge conducting a review has a decision to make as respects any evidence that needs to be heard or re-heard when a determination is wrong as a matter of substantive or procedural law. He or she may conduct a limited re-hearing on a discrete point if the material exists to enable that to be done. That may involve considering an application to adduce additional evidence but in any event will involve a careful appraisal of whether the evidence exists to decide the issue in question and how that exercise is to be conducted to ensure procedural regularity.

 

 

 

  • Mr Weston’s final point is that the evidence in these proceedings was so defective on the point that it was not available to the judge to fill the gaps that existed. Accordingly, even if she had allowed the appeal and moved to re-hear the case, she could not have done so immediately without the benefit of case management to ensure that the court had the evidence that it needed to conduct its own analysis and evaluation.

 

 

 

  • Mr MacDonald like Mr Weston carefully identified the difference between a review and a re-hearing but was astute to identify cases in which a review and a re-hearing may be a continuum. He submitted, correctly, that the duty of the judge conducting a first appeal is to decide whether the proportionality evaluation of the first court was wrong. A proportionality evaluation is not a discretionary decision: it is either right or wrong and whether a decision based upon it should be set aside on appeal depends upon an analysis of the kind formulated by Lord Neuberger in Re B at [93] and [94]. Mr MacDonald submitted that the judge on appeal having identified the deficiencies in the first court’s decision making was obliged to consider whether the proportionality evaluation was thereby or in any event wrong. In an attractive submission he demonstrated that in every case where the first court has made an error in the welfare analysis (even where that analysis is based on a sufficient evidential base) the proportionality evaluation will be affected such that it may have to be re-made. He rhetorically asks the question whether in every such case the appeal court is required to remit the proceedings for a re-hearing when everything else in the case is intact and procedurally regular.

 

 

 

  • The continuum described by Mr MacDonald is very real in two senses: a) the welfare analysis and proportionality evaluation are intimately connected because an error in the analysis will inevitably have an effect on the evaluation with the consequence that an appeal court has to consider them together and b) the appellate court’s review of welfare and proportionality will involve having to consider whether there would be any difference in the ultimate conclusion, that is the order made, if the welfare analysis and proportionality evaluation were to be re-made. Aside from other considerations, that is because an appeal lies against an order and not the reasons for it (see Lake v Lake [1955] P 336). That at least involves, where practicable, a hypothetical exercise in seeing what the evaluation would be if it were to be re-made on a correct welfare basis.

 

 

 

  • Mr MacDonald acknowledged that the decision by an appeal court whether to re-make a welfare analysis and proportionality evaluation or remit for a re-hearing is itself a discretionary exercise. He identified the question which the appeal court needed to ask in relation to that discretionary exercise as being: “is the error rectifiable by the appeal court or is it too big?” That tends to suggest that there is an identity of approach by the appellant and the respondent to the question this court is asked to answer.

 

 

This is a big issue – if during the process of an appeal, the appellate Court is satisfied that the original decision was made wrongly, what are they supposed to do about it? Granting the appeal is easy, but that’s only half the story. Do you send it back for re-hearing, or give your own subsituted judgment addressing all of the issues? Which is the right thing to do? If either are possible in certain circumstances, what are those circumstances?

Conclusion in principle:

 

  • I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.

 

 

 

[Suesspicious Minds interruption – this is saying that the appellate Court have the power to do either – to remit for rehearing OR make their own decision, but they have to be sure that the course that they take is FAIR]

 

  •  If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.

 

 

 

  • If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

 

 

 

  • The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

 

 

 

 

Thus, if the error that led to the appeal is sufficiently narrow or discrete that the appellate Court can fairly make their own decision, then they can do so, but if it is wife and arises from missing evidence or the failure to answer a key question, or the credibility of witnesses is at issue, then a re-hearing would be the right outcome.

 

Application of the conclusion in this case:

 

  • Mr MacDonald’s primary submission is that at least initially Judge Clarke correctly identified what was required of her in this passage of her judgment at [50] that I have cited at [10] above. Later in judgment and perhaps as a consequence of a discussion on the transcript to which this court has been taken, Judge Clarke appeared to conflate the issues she had so carefully identified by regarding McFarlane LJ’s analysis in Re G at [69] as being a mandatory requirement to re-make a proportionality evaluation where errors are identified which vitiate a first court’s analysis. I do not read that part of McFarlane LJ’s judgment in that way. He was identifying the logical consequence that errors in the decision making process would necessarily have an effect on the proportionality evaluation rather than that in every case the appeal court should substitute its own proportionality evaluation for that of the first court. The latter formulation would be contrary to the dicta of the majority of the Supreme Court in Re B. Had Judge Clarke not been deflected from her task, she would have reached the point where the discretionary decision identified should have been made. Mr MacDonald submits that had she done so, she had all the material she needed to re-make the decision. He submits that the error of the FPC was not critical to the determination because the evidence existed in support of a welfare analysis and a proportionality evaluation that were and are coincident with the orders made by the FPC. To that extent, he says, the judge was able to fill-in the gaps and avoid a full re-hearing that would have involved inevitable delay. He has taken this court through the judge’s decision making process in an attempt to support the exercise she undertook.

 

 

 

  • The final evidence of the social worker does not include any welfare analysis or balance. It also fails to deal with why the adoption of B was necessary or required. The local authority’s permanence report which was exhibited to their Annex B report in support of the application for a placement order ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated. I need say no more than that both reports are poor and demonstrate a defective exercise in identifying the benefits and detriments for the child of the realistic long term options for the care of B. That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made. The revised care plans and statements of evidence filed after the local authority changed its mind contained statements relating to their concerns about whether the parents had the capability to work openly and honestly with them. Beyond that they are devoid of any welfare analysis of the alleged change of circumstances or of the options for the long term care of B. There is no evidence relating to the proportionality of the plan proposed.

 

 

 

  • Although the children’s guardian’s analysis makes reference to both exercises and supports the local authority’s plan for adoption, it likewise does not descend to an analysis of the welfare of B throughout his life except for just one opinion in one of 36 paragraphs where she says: “My own view until very recently was that this is a finely balanced case; although I had significant concerns about the parents’ ability to work in partnership with professionals. I balanced against that the potential loss to [B] of the opportunity to live in the care of his birth family if such an outcome could be achieved. I was particularly mindful of his right to family life and the loss to him of a relationship with his siblings.” So far as it goes, that is a relevant opinion, but in my judgment not a sufficient analysis for the purposes of the ACA 2002 or the authorities. There is no evidence directed specifically to why it is necessary to dispense with the consent of the parents to adoption.

 

 

 

  • With the benefit of access to the original evidence that this court has had, it is clear that that evidence could not in itself have supported the conclusions reached by the FPC had it been adopted as the reasoning for the same. In particular, there is no comparison of the benefits and detriments of the realistic welfare options for B upon which the FPC could have relied. In the absence of a sufficient welfare analysis by the FPC, there was simply no analysis at all. Accordingly, there was nothing of substance to be evaluated to decide whether or not it was proportionate. Judge Clarke did not hear any additional evidence with the consequence that the evidential basis for the orders remained as defective in the County Court as it had been in the FPC. No amount of elegant language could disguise that fact. It is of course open to a specialist judge to construct an analysis required by statute from the evidence of fact, expert opinion and evaluative judgment that she has heard and that is a distinct exercise from a professional assessment that is required because it is outwith the skill and expertise of the court: Re N-B (Children) (residence: expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259. In this case there was no evidential basis for that exercise.

 

 

 

  • Where the appeal court cannot comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision has been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. There is a continuum between the functions of the appeal court to review the proceedings of the first court and to conduct discrete decision making functions that fill identified gaps in analysis or evaluation that represents an appropriate exercise provided it not be used so as to create a situation of procedural irregularity. It is not helpful for this court to be prescriptive. Each appeal will have its own matrix of fact and value judgments. In this appeal, the evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

 

 

 

  • At the conclusion of the appeal we allowed the appeal with reasons to follow. We set aside the care and placement orders and remitted the proceedings for a re-hearing of the welfare decision relating to B by a different judge in the County Court who had already been allocated to consider the local authority’s applications relating to the parents’ new baby.

 

 

That all seems perfectly proper to me, and it is nice to have it clarified. My suspicion is that we will see more re-hearings than substitutions of judgment. That does raise its own question, as to what happens with very time-sensitive decisions (like an ICO removal) where hearing-appeal-rehearing seems to build in quite  a delay – and if the first court granted the removal, is the child to be returned after the successful appeal pending the rehearing? It will probably be case specific.

 

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Special Guardianship versus adoption

Posted on May 10, 2014 by suesspiciousminds

 

 

 
Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption.  As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

Re B-S can itself be the change of circumstances

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014
http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate

 

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

 

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.

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Successful appeal against placement order

Posted on May 8, 2014 by suesspiciousminds

 

The Court of Appeal’s decision in Re R (A child) 2014 and why an appeal is now even worse news for a Local Authority

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/597.html

 

It has been a little while since we had one of these “non B-S compliant” appeals, but just to let you all know that they haven’t gone away.

 

This was an appeal about four children, who were all made subject to Care Orders in August 2013, and the youngest two were made subject to Placement Orders.

 

The mother appealed, and when the case got to the Court of Appeal, the Court of Appeal were very troubled that from the original judgment, it simply wasn’t possible to tell whether the Court had really looked at the other options available, the positive benefits of those other options and whether adoption really had been the last resort.

 

The fundamental concern in the case had been the risk posed by the father. The Court of Appeal quoted what Lewinson LJ had said when granting the permission to appeal

 

“The risk …. that the judge found was clearly tied to Mr J and his inappropriate sexual behaviour. The material submitted by the local authority, which I have read and which is confirmed by the mother’s grounds of appeal, shows that the mother and Mr J are now divorced, no longer living together and the mother has no intention of resuming any relationship with Mr J. In those circumstances, I have a considerable concern that the judge did not make any clear findings about whether the risk which he identified continued to exist after the disappearance of Mr J from the life of the mother and her children. I have a concern also that the judge did not expressly deal with less draconian outcomes than the orders which she eventually made.”

 

And the final conclusions that the Court of Appeal reached were not markedly different to that.

 

On risk

 

21 The central issue in this case, as the judge saw it, was the sexual risk posed by Mr J. That risk was based upon the 2006 conviction although the judge referred to the allegations made by S as particularly troubling too. Plainly, she was entitled to take into account the existence of those allegations and M’s response to them but given that she had not made a finding that the disputed events in relation to S had taken place, she was not entitled to proceed on the basis that Mr J was a risk because he had sexually abused S. This is appropriately reflected in her formulation of the risks.

22 Two points immediately stand out in relation to the sexual risk posed by Mr J.

23 First, Mr J is only a risk to these children if he remains on the scene or is going to return to it. M’s case is that she separated from him within weeks after the events of August 2012 and has since divorced him. LA say that there is no direct evidence that she has continued to associate with him but they remain suspicious on grounds which they explained. However, the important point for the present judgment is that no finding was made by the judge about whether M was still associating with Mr J or would be likely to do so in future. Without a finding that he was likely to feature in her life or the children’s in some way, it is difficult to see how he could be said to pose a risk to these children. If he did not pose a risk, then it was academic whether M would be able to protect the children against him and no finding was made that she would be likely to take up with another man who would pose a similar risk.

24 Second, even if the evidence were to establish that Mr J may be part of the picture in future, any evaluation of M’s attitude to the risk he poses would have to take into account LA’s own attitude to that risk in May 2012. The risk flows principally from Mr J’s 2006 conviction and, knowing about that, LA permitted Mr J to live in the family home with the children from May 2012 onwards, without even supervisory oversight by LA who had closed the case. A rather sophisticated analysis of the situation would be required in order to accommodate this feature. The analysis may be further complicated by the need to take into account also M’s attitude to the August 2012 allegations that S made. Although it was not proved that things had happened as S said, there was no question but that she made serious allegations and LA would say, no doubt, that M’s failure to keep an open mind about them shows that she lacks the capacity to behave protectively. However, whether M’s attitude to the allegations counted for anything in the analysis of her ability to protect the children from risk in future would depend upon what facts were available to her about the situation in relation to S, either from her own knowledge or from elsewhere. Particularly careful evaluation of this feature of the case would therefore be required. The fact is that the judgment does not deal with these factors at all, neither referring to the older history of the case leading to it being closed in May 2012, nor dealing with the complex situation in relation to the August 2012 allegations.

25 This is a deficiency in the judgment which undermines the judge’s welfare decision fatally in my view.

26 Without a sufficient evaluation of the risk flowing from Mr J’s sexual activities, all that was left as a foundation for the judge’s view that M could not provide the children with emotional care and was unable to protect them was what she set out in §38.3 (supra). It would be difficult to argue that that alone was enough to justify the orders that she made.

 

On a failure to properly explore the other options

 

 

27 Lewison LJ questioned whether the judge had dealt sufficiently with the less draconian outcomes that might have been possible for these children. We explored this question further during the hearing and I concluded that the judgment did not, in fact, deal sufficiently with this.

28 Exactly what might be possible for the children will depend upon the precise nature of the risk that is found to exist – what is at risk of happening, how likely it is to happen and what the consequences would be for the children if it did happen. However, there is an obvious need at least to consider, in every case, whether the children could be protected whilst living at home by LA maintaining a supervisory role through the medium of a supervision order or even a care order. I note that M’s case was that the children would live with her and her parents (judgment §17). The judgment reports that the social worker did not see this as a viable arrangement for the children but there is no explanation as to why not. The social worker gave evidence about the difficulties of communicating effectively with the children and gaining an understanding of what was happening in their home (judgment §15) and also about the near impossibility of establishing a working relationship with M (§18). That may weigh heavily against a placement at home under supervision but whether or not it did would depend upon the nature of the risks against which the children needed to be protected, as to which I have already expressed my views above.

29 Part of the overall welfare evaluation needed to be a thorough examination of the implications for the children of being removed from home permanently, split up from their siblings (the plan being for them to be placed in two pairs) and, in the case of the youngest two, removed from their family permanently. These were not infants by any means. The evidence was that they were very loyal to M. The judge recorded that the oldest two were expressing a desire to go home. There was evidence that the youngest two, whose primary carer had consistently been M, seemed to have largely secure attachments and were resilient children, engaging and sociable and not giving rise to any concern in relation to their behaviour or social presentation (see the report of the clinical psychologist who assessed the children).

30 The judge précised some of the evidence of the clinical psychologist in her judgment. She reported, for example, that the psychologist said it was difficult to balance the sibling relationship against the individual needs of the children for stability and permanence in a placement (judgment §20) but this was in the context of a consideration of what should be done about the children’s placements away from home i.e. whether they should all be placed together or split so as to give the younger children the chance of being adopted. That was predominantly the focus of the rest of the evidence précised by the judge as well, from the social worker and the guardian.

31 As Re G [2013] EWCA Civ 965 has made clear, the decision whether an order should be made which will result in the children not going home has to be taken following a global, holistic consideration of all the factors in the case and each of the options available for the children. The judgment in Re G was, of course, only handed down on 30 July 2013, which was during the hearing of evidence in this case. It is well understood that its implications would not have been digested by the time that submissions were made and judgment given. Indeed, it is only fair to observe that 2013 was a year of upheaval for family law and I have no doubt at all that keeping abreast of developments must have been very difficult indeed for practitioners and judges alike.

32 For whatever reason, however, even taking the judgment as a whole and concentrating on substance rather than form, it cannot be said that the judge carried out “a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (see §54 of Re G). What was required was not only a comparison of adoption vs fostering and splitting the children vs not splitting them. The judgment needed also to deal with the possibility of returning them to their home, taking account of losses that the children would suffer if this were not to happen. Those losses needed, in turn, to be taken into account in considering the case for adoption/long term care. It may well be that the judge considered that she had covered the possibility of a return home in her précis of the evidence of the social worker and the guardian, whose evidence she found impressive and who considered that it would not be feasible because it would not be possible to work with M or the children. However, more was needed in my view, and I am confident that the judge would have dealt with these issues more fully had she had the benefit of all the observations that emerged from this court and the Supreme Court during the course of 2013.

 

 

The Court of Appeal therefore discharged the final orders and sent the case back for re-hearing.

 

 

They also raise a practice point, one which will make the average Local Authority lawyer’s hair stand on end like quills upon the fretful porpentine. They point out that as the appeal was brought by a litigant in person, the procedural formalities (making sure everyone was served, setting out clearly the issues, having all of the relevant documents in the bundle) weren’t complied with. They then say “there’s no resources for the Court to do all of this”

 

And of course they then say “So, Local Authorities, with their bottomless resources and pockets, will have to sort it out”   (bear in mind that the LA are opposing these appeals, not bringing them)

 

6 This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.

7 The court has no extra resources to respond to these added challenges. It needs to be understood that the file from the lower court is not available to the appeal court which is dependent on the papers supplied for the appeal by the parties. If it is to be able to deal properly with an appeal in care proceedings, and to do so speedily (as most local authorities require so that undue delay is avoided for the children who are the subject of the proceedings), then local authorities will have to expect to assist by ensuring that the court is provided with appeal bundles. Three copies of the appeal bundles are normally required, unless the appeal is ordered to be heard by two judges in which case only two copies need be supplied. The bundles will often have to include the documentation that was available to the court below, although there can be appeals in which the issue is so discrete that a more limited selection of papers will suffice. It is so frequently the case that the papers supplied by the appellant are deficient that it should be standard practice for the local authority to take steps itself, well in advance of the hearing, to consider the appellant’s proposed bundle and, if it is deficient or apparently non-existent, to contact the court to see whether it is necessary to supply alternative or supplementary bundles.

8 It is important also that the respondents to the appeal make themselves aware of the issues that will be aired at the hearing. If permission is given in writing there will be an order which sets out shortly what the Lord Justice decided and why. If permission is given at an oral hearing, a short judgment will almost invariably be given explaining why and a transcribed copy of this should be sought.

9 I said more about the cost to individuals and to the legal system of the absence of legal assistance in Re O-A, a private law children case decided on 4 April 2014. Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult

 

 

In effect, if an appeal is brought by a litigant in person, the Local Authority should undertake all of their requirements as a Respondent, but also now do everything that the Court would normally expect an Applicant to do.

 

(And of course, remembering that whilst there’s no chance of the LA recovering THEIR costs if the appeal is hopeless or lost by a country mile, there’s authority to say that if the appeal succeeds costs orders can be made against the LA.  )

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Italian C-section case – the final chapter

Posted on April 15, 2014 by suesspiciousminds

 

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left.  It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose  (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

 

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

 

 

  • As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

 

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

 

  • The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

 

 

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

 

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.

 

 

 

 

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Adoption proceedings – member of extended family wishing to challenge

Posted on April 14, 2014 by suesspiciousminds

The Court of Appeal dealt with the appeal of a non-parent who was not given permission to oppose the making of an adoption order.

 

(The relationship here is a tricky one – the appellant was the mother of mum’s partner, so had no biological or familial relationship to the child, but had been caring for the child for most of the child’s life before care proceedings were issued. “Extended family” is probably as close as we are going to get in terms of an umbrella term for someone like this)

 Re G (A child) 2014

 

It throws up what the Court of Appeal describe as a “technical novelty” (which is a phrase I may pinch for my tombstone in years to come  – assuming that I don’t imitate Woody Allen’s assertion  “I intend to live forever – or die trying”)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/432.html

 The appellant could not seek to revoke the Placement Order, since an application for adoption was already lodged.  

The appellant could not seek leave to oppose the making of the adoption order, since she was not a parent     (an application for leave is limited to “parent” under s47, and importantly “parent” is defined in the Adoption and Children Act 2002 as someone who holds parental responsibility – so a father without PR could not apply for leave to oppose the making of an adoption order)

 

She could apply for party status, or the Court could, knowing of her interest, make her a party of its own motion   FPR 2010, r 14.3(3) provides that:

“the court may at any time direct that (a) any other person or body be made a respondent to the proceedings; or (b) a party be removed.”

 

But what she really wanted was to be able to challenge the making of an order.

 Some digging and clever work by the lawyers involved reveals the answer

 

Adoption and Children Act 2002   (underlining mine)

 

S 29(3) and (4) which provide:

“(3) Where a placement order is in force—

(a) no prohibited steps order, residence order or specific issue order, and

(b) no supervision order or child assessment order,

may be made in respect of the child.

(4) Subsection (3)(a) does not apply in respect of a residence order if—

(a) an application for an adoption order has been made in respect of the child, and

(b) the residence order is applied for by a parent or guardian who has obtained the court’s leave under subsection (3) or (5) of section 47 or by any other person who has obtained the court’s leave under this subsection.“

 

 

So, someone who is NOT a parent (i.e has PR) can apply for leave to make a residence order, and the Court can consider that application. Obviously the successful application for a residence order has the effect of resisting the adoption order, since the child moves from adopters to the applicant.

 

 The question then arises – what is the test for obtaining the Court’s leave under s29(4) to apply for a residence order ?

 

Unlike the statutory provisions governing an application for leave to apply to revoke a placement order (s 24) or leave to apply to oppose an adoption (s 47), s 29(4)(b) does not contain an express statutory requirement for the court to be satisfied that there has been a “change in circumstances”. Miss Meyer submits that, nevertheless, such a requirement should be read in to the statutory provision on the basis that it would seem inappropriate for a person who is neither a parent nor a guardian to face a lower requirement than the one facing a parent or guardian on the question of whether or not they are allowed back in before a court to contest either the continued existence of the placement order or any subsequent adoption application.

 

 

It proved quite problematic to resolve whether on an application under s29(4) the child’s welfare was paramount   (the Adoption and Children Act, unlike the Children Act, makes heavy weather of welfare paramountcy and this is something that the Courts have had to tackle before)

 

26It follows that a court is not required to afford paramount consideration to the welfare of the child when determining whether or not to grant leave to apply for a residence order under s 29. There is, however, no reason for departing from the approach described by Wilson LJ, as he then was, in Warwickshire CC v M at paragraph 29 when describing the second stage of an application for leave under s 24(3) once a change in circumstances has been established:

“…a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.”

 

 

 

 

Is there a “two-stage” test for s29(4)   (i.e change of circumstances – not welfare paramountcy, and then if that shown should the application for leave be granted balancing the welfare of the child and prospect of success)

 

27 Finally, in terms of the test to be applied, Miss Meyer’s submission that an applicant for leave under s 29(4) must establish, as a first stage, “a change in circumstances”, in like manner to the test facing those who apply under s 24 and s 47, is not accepted by Miss Henke. She submits that whether or not there has been a change in circumstances may be relevant in some cases, however, where, as here, the provision applies to “any other person” that class of individuals could include, for example, a natural father of a child who lacks parental responsibility. He, it is suggested, may emerge into the subsequent adoption proceedings late in the day, and have played no part in the “circumstances” which justified the making of the original placement order. Miss Henke therefore argues that there should be a one stage test within which the court will, naturally, look at the previous factual matrix and compare the current circumstances but without the formal structural need for a discrete first stage at which “a change in circumstances” has to be established.

28 There is, on this point, a danger of the court dancing on the head of a pin and considering a difference which, in reality, is without a distinction. In any application of this nature, where the applicant is not simply wishing to have a voice in the proceedings but is seeking leave to apply for a residence order, the underlying factual circumstances, and any change in those circumstances since the making of the original placement order, is likely to be of great relevance. Parliament has, however, held back from introducing an express statutory provision requiring the court to be satisfied about a change in circumstances where the application is for leave under s 29(4), in contrast to the approach taken in the other two provisions. I would therefore step back from holding that there is such a specific requirement where leave is sought under s 29(4). However, when considering whether to grant leave to apply under s 29(4), and when adopting the approach described by Wilson LJ in Warwickshire CC v M, I consider that any change in the underlying circumstances will be of great relevance both when the court assesses the prospects of success for the proposed residence application and when considering the welfare of the child.

 

 

So, the Court of Appeal say that a relative making an application under s29(4) for leave to make a residence order application when there’s an adoption application lodged, does not HAVE to show a change in circumstances since the making of a Placement Order (as a parent would) but whether there has would certainly be a relevant factor when considering the application.

 

That, oddly, puts the test for a father without PR wanting to challenge an adoption order as being slightly lower than for a mother or father who HAVE PR (which was Lorna Meyer QCs point earlier)

 

 

the circumstances of this appellant could have been catered for by treating her application as an application for leave to apply for a residence order under s 29(4) for the reasons I have given. If such an application were made there is no discrete requirement for the establishment of a change in circumstances, ACA 2002, s 1 does not govern the determination of the application by requiring the court to hold the child’s welfare as its paramount consideration, but the application would fall for adjudication in accordance with the approach described by Wilson LJ in Warwickshire CC v M.

 

 

Because all of this technical analysis was not available to the original judge, the Court of Appeal had to revisit the decision made not to allow the appellant to participate.

 

The Court considered that the appellant had not shown sufficient to pass the newly minted test for s29(4) applications   (note, however, what is said about a FATHER without parental responsibility, in relation to whether a person who does not have leave to make an application or leave to oppose could nonetheless be joined as a party)

 

45 Thus, when viewed from the perspective both of the prospects of success and of the child’s welfare, AR’s application for permission to apply for a residence order under ACA 2002, s 29(4) must fail.

46 In contrast to the position of a father who lacks parental responsibility, and who wishes simply to be heard as a party to a final adoption application with respect to his child, AR, as a non-relative who was, however, the primary carer for G during the first 18 months of his life, does not in my view have a sufficient interest to be joined as a respondent to the adoption application in the absence of any ability to make a substantive application in the proceedings.

47 In all the circumstances, when applying the statutory scheme to AR’s position as it is now clear the judge should have done, the outcome of the balancing exercise in respect of both s 29(4) and joinder as a party is inevitable; both applications must fail. As a result, there is no ground for overturning the outcome as determined by HHJ Edwards. I would therefore dismiss the appeal.

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Step-parent adoption – telling the birth father

Posted on April 12, 2014 by suesspiciousminds

 

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

 

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

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

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

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

 

The Relevant Legal Framework

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

Notice of proceedings to person with foreign parental responsibility

14.4

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

and –

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

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

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

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

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

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

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

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

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

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

 

 

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

 

 

 

 

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

 

 

 

 

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

 

 

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

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Proportionality and harm

Posted on April 12, 2014 by suesspiciousminds

 

Holman J has given judgment in an appeal, London Borough of Ealing v JM and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1084.html

 

The appeal is not concluded (the Judge has asked for some more information about the placement proposals and family finding) and I hesitated a bit about writing at it whilst it is still ongoing, but the judgment was published, and it does raise one interesting aspect, which I don’t think we have seen the last of.

Now that the European jurisprudence about proportionality has been echoed by our Supreme Court and Court of Appeal, the underlying context to that is that when deciding whether adoption is proportionate one has to be looking to what would happen or be likely to happen to the children at home.

In this particular case, the mother tried unsuccessfully to run a “Kenneth Williams defence”   (Infamy, infamy, they’ve all got it in for me)

 

  • The sad and worrying part about this case is that, between her decision and judgment in mid July 2013 and the outcome hearing which began in late November 2013, the district judge had deliberately afforded a significant period of time within which there could, amongst other matters, be an assessment of the mother by an expert in order to try to find out why she had injured her two children in the ways described. Unfortunately, the mother did not cooperate with, or properly participate in, that assessment and therefore it is not possible to know whether she injured the children as a result of manageable stress or some other force of circumstances which could be recognised and managed in the future, or whether she did so out of, frankly, callousness or brutality. Unfortunately, the reaction of the mother to these proceedings and to the fact finding decision of the district judge in July has effectively been one of almost total denial. Instead of acknowledging and facing up to what she had done and seeking help about it, the mother adopted what the district judge was later to describe as a “conspiracy theory”. She has said and continued to say that the allegations had been fabricated; hospital documents, including photographs of the injuries, faked or forged; and she has said even that the examining doctor at the hospital is a non-existent person.

 

The part of the appeal that I am going to focus on relates to the findings of harm, and the case run by the parents that even if those findings were correct, this was not the sort of harm that justified adoption. (In effect that there are two separate thresholds – “significant harm” in the context of s31 of the Children Act,  but then the sort of significant harm which would make adoption a proportionate response).  Almost certainly what was in their mind was the finding of the original judge that the injuries to the children had been ‘relatively minor’

 

 

  • As I understand it from the judgment of the 7th January 2014, these children were living together with both their parents who were, and still are, themselves living together. In October 2012 the daughter, then aged three-and-a-quarter, said certain things at the children’s nursery which led to the children being examined first at the nursery and later at a nearby hospital. The hospital observed and recorded a number of scratches and other minor injuries on them, and the daughter gave what was described as “a vivid account” of how they had happened and blamed her mother. In the upshot, after the five-day hearing during June and July 2013, the judge concluded that the perpetrator of all the injuries was the mother. She concluded that the daughter had sustained nine minor injuries to her body, and the son had sustained five minor injuries to his body, all of which were caused non-accidentally. In other words, no less than 14 minor injuries, essentially scratches, had been deliberately caused to these two children by their mother. Additionally, and seemingly of even greater concern, the mother had caused two non-accidental -that is, deliberate – boot mark injuries to the shoulders of her daughter.

 

 

 

 

  • The district judge herself very clearly acknowledged and recognised, as had the children’s guardian, that the injuries themselves were not of a serious kind nor requiring any medical treatment. She said, at paragraph 122 of her outcome judgment of the 7th January 2014:

 

 

 

 

“The injuries … were not very serious. They were relatively minor.”

 

 

And this is how the parents developed that argument

 

As proposed ground 6 of the proposed appeal (namely at paragraph 41 of their skeleton argument for today) Mr and Mrs Haines have argued that:

 

 

“This placement order is made as a result of injuries to [the girl] which were very much on the lower end of the scale, to the extent that they did not even require any medical treatment, and it is submitted that a placement order is a disproportionate response to such injuries.” 

 

That is a point which Mrs Julie Haines further developed and submitted this afternoon. It does not, in my view, afford the slightest ground of appeal. First, as I have observed, the district judge herself was well aware that the injuries in question were not very serious and were relatively minor. Second, it is not actually correct to limit the injuries only to those to the daughter, for, as I have said, it clearly emerges from paragraph 9(1) of the outcome judgment that there were also five minor injuries to the son. So the picture here is of deliberate infliction of injury, albeit minor, to both children. Third, although overall the injuries may be described as “minor” they do include non-accidental, that is, deliberate, boot mark injuries to a girl who was at the material time aged about three. All this is evidence of a deliberately abusive attitude by a mother to both her young and vulnerable children.

 

And as you can see, Holman J, simply wasn’t convinced by that as a ground of appeal at all.   IF Re B ever gets to the European Court of Human Rights, this issue might be revisited. For the time being, crossing the threshold is sufficient, without needing a two tier significant harm test (one for orders that involve the child not being permanently separated, and one for orders that do)

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Adoption breakdown research

Posted on April 10, 2014 by suesspiciousminds

 

A lot of people, including the House of Lords when they asked questions about the rate of adoption breakdown and found that there was no clear answer, have been wanting to see some good research on adoption breakdowns.

This is a piece of research on that very issue, commissioned by the Department for Education and conducted by Bristol university. I think it is solid.

The report opens by saying that there hasn’t previously been a national study on adoption disruptions – the previous studies have been with narrow subsets of children, leading to “rates of disruption having been quoted as ranging between 2% and 50%” (To paraphrase Paddy Power “I hear you” – I have heard over many years in Court, a wide variety of numbers being given as to how likely an adoptive placement is to break down, usually thirty seconds before a Jedi handwave and “the research is well known” – though not capable of ever being named)

There’s a LOT of it, and my summary isn’t going to be a substitute for reading it.

Click to access Final_Report_-_3rd_April_2014v2.pdf

There’s a decent summary over at Children and Young People Now

http://www.cypnow.co.uk/cyp/news/1143367/local-authorities-underestimate-adoption-breakdowns-study-suggests

The headline there relates to the difference between the prediction Local Authorities made of the chance of a placement breaking down before the age of 18 (3.4%) and that reported by surveys of adoptive parents (which was 9%)

So, is the adoption breakdown rate about 9%? Well, maybe not. [Actually, when you sit and read the report carefully, their conclusion is that adoption breakdown rates are somewhere between 2 % and 9%. Why is the number so wide-ranging? Well, ultimately because there are actually substantial variations between Local Authorities – where Erehwon has a breakdown rate of 2% and Llareggub has 9% – is the breakdown rate between the middle, or is it more accurate to say that nationally it is BETWEEN those figures?]

The research is looking at adoptions where an order has been made, and whether the placement continued until the child was 18, or ended (which is then classed as a breakdown or disruption, for whatever reason)

It looks at the previous research – Rushton 2003 which cited a breakdown rate of 20%, but that covered placements pre order, and obviously had a number where the placement ended after a very short period because the ‘fit’ wasn’t right , and Rushton and Dance 2006 (Although no lawyer actually knows the name of it or what it really says, this is the piece of research that gives the figure that has been bandied about and exaggerated over the last few years) that gave a figure of 19% – the study had been entirely of children who had been placed for adoption later in life than the norm.
An interesting aspect, to me, is the comparison the research does of 3 types of placements and their stability (frustratingly for me, there isn’t the comparison of stability of adoption v long-term foster care, which would now be extremely helpful to know)

The research says that they looked at:-

 

•37,314 Adoption Orders of which 565 were known to have disrupted
5,921 Special Guardianship Orders of which 121 were known to have disrupted
• 5,771 Residence Orders of which 415 were known to have disrupted
Peculiarly, although the research highlights that SGOs were anticipated to largely replace Residence Orders, the number of Residence Orders doesn’t seem to have gone down since their introduction.

I did my own number crunching on that, which worked out as a breakdown rate of 1.5% for adoptions, 2% for SGOs and 7% for residence orders.
So is THAT the breakdown rate?

Well no, it gets a bit more complicated (because the individual cases they were looking at were at different ages – to exaggerate wildly – if you imagine the residence orders were mostly dealing with teenagers and the adoptions mostly with pre-schoolers, then of course one group has had more chance to break down. Wild exaggeration, just so that you get the underlying concept, that some complicated maths has to be done to smooth out the differences)

Breakdown (or disruption) rate
The research says that over a 5 year period
•147 in 1,000 ROs would have disrupted (14.7%)

57 in 1,000 SGOs would have disrupted (5.7%)

•7 in 1,000 adoptions would have disrupted (0.7%)

And that over a five year period, the most stable form of placement was comfortably an adoptive placement.
But of course, a five year period isn’t necessarily it for adoptions – the research demonstrates that the most precarious time in an adoptive placement is in the teenage years , and that over a 12 year period the disruption rate went up to 3.2%.

The researchers suggest that by the time 1000 children who have been adopted reach the age of 18, those placements will have been disrupted or broken down for between 2 and 9% of them (i.e between 20 and 90 children – the corollary of that, obviously is that for every 1000 children placed for adoption somewhere between 910 and 980 of them will have placements that endure for their childhood)

Of those disruptions, nearly two thirds will be during the child’s secondary school years, with the average age of a child whose placement breaks down being 12 ½.
Influences

When looking at what influences a disruption, the research found that for children placed with adopters before the age of 4, only 1% of those placements had broken down. For children aged over 4 at the time of the placement, that went up to 5%. Three quarters of the children who had an adoption breakdown had been placed after the age of four.

Additionally, the more moves a child had had prior to the adoptive placement, the higher the chance of disruption. And the longer a child waited for a placement, the higher the chance of disruption – of the children whose placements had broken down, three quarters of them had waited for more than two years for a placement.

 

There is no real difference in terms of gender of the child as to whether a disruption is more or less likely (1.4% of all males placed had breakdowns, 1.7% of all females – a slight difference, but not statistically important – anecdotally it is mildly surprising that this is not the other way around). Nor was ethnicity a relevant factor in breakdown rates.

The reason for the child coming into care makes very little difference to the breakdown rates either.

Looking at the types of carer, the research SUGGESTS that single carers had a higher proportion of disruptions than would be predicted by pure averages, but are cautious about this because the data isn’t as full (the information about whether an adopter is married or in a civil partnership has only been collected since 2006)

The research also suggests that foster carers who go on to adopt the child don’t have (as many professionals would suspect or believe) lower disruption rates than stranger adoptions – if anything, it is slightly the other way. [The research points out that it may be more likely that foster carers who adopt are taking more damaged children than the statistical norm, that children have usually waited longer to be adopted if their foster carers adopt them and that foster carers who adopt might suffer more than stranger adopters when the LA backs off]
The percentage of adoption disruptions varied significantly between the Local Authorities sampled – from 0.7% to 7.4% (it is figure 20, page 55 of the research if you want to look at it).

Really hard, obviously, to unpick whether that is because of something that the LA’s are doing (picking adopters, supporting them, managing dramas) or whether it is that in any particular LA one has a higher proportion of older children, who wait longer in care. If it is the former, then we really want to get all of the Local Authorities learning from the best ones, because every single breakdown is a human tragedy for all involved.

 

•Between April 1st 2000 and 31st March 2011, 37,335 children were adopted and of these 565 were known to have disrupted post order and information was available in the database.
• Nearly two thirds of disruptions occurred during the teenage years.
• Gender and ethnicity were not associated with greater risk of disruption.
• The children whose adoptions had disrupted were significantly older at entry to care (average 3 years old) in comparison with children (average 1 year old) whose adoptions were intact. Nearly three-quarters of all the children had been abused or neglected.
• Children who had experienced a disruption also had significantly more moves whilst looked after and waited longer to be placed with their adoptive family compared with those children whose placements were intact.
• Children who were no longer living with their adoptive families were significantly more likely to have lengthier adoption processes compared with the children whose adoptions were intact. This was the case for those who entered care under the age of 4 years old and those who entered over 4 years of age.
• Three-quarters of the children who experienced a disruption were older than 4 years of age at placement with their adoptive family and a quarter were younger than 4 years of age. In comparison, 70% of children in intact placements were under the age of four.
• Children whose foster carers became their adoptive parents entered care at a similarly young age to those who were adopted by stranger adoptive parents. However, they waited on average two years before their foster placement was confirmed as an adoptive placement and were on average 5.2 years old at the time of the Adoption Order. In comparison, those adopted by strangers were only 3.8 years old at the time of the Order.
• Foster carer adoptions were not more stable than adoptions by stranger adoptive parents.
• The proportion of adoptions that disrupted varied by local authority

 

This is a bit that is fairly low key and probably won’t be picked up by the press reports, but I think is very important

 

“We asked adoptive parents whether there had ever been any difficulties with birth family contact through SMS, email or Facebook. Whilst 20% said this had been the case, many more feared that they would be facing these problems in the future”

 

If you wanted to find a person in the 1980s, you had to hire a private detective. Now, if you spend an hour on the net, you’ll know more about them than their own mother.

I think there are really good bits in the research dealing with how various local authorities dealt with requests for help from adopters, and some very honest and raw interviews where things that are normally unspoken were said out loud – the shame, the guilt, how hard it is to ask for help, and on the other side, how social workers can sometimes present as being very intolerant of the need for help and that the adopters took this child on and they just had to make it work. Many requests for help ended up being managed as s47 investigations, which escalated things badly.

There are some major criticisms of life story work (particularly about these books not being moved forward and age-appropriate for much older children, at the point where they really want to know more about their identity)
Conclusion

 
We began this study knowing very little about adoption disruption. To our knowledge, there had never been a funded study in the UK whose focus was on disruptions post order. The disruption rate was lower than we expected. The reasons for that became obvious when we met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance. An adoption manager who was interviewed for this study suggested that perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families we interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave. A key value150 of social work in professional practice is compassion and respect for individuals. It is probably easier to practice if there is a clear duality of victim and abuser. Who was the victim and who was the abuser was unclear in families where there was child to parent violence. Splits and conflicts between children’s social workers and post adoption social workers then emerged. It left adoptive parents feeling blamed, demoralised and unsupported. It was apparent that many had lost faith in professionals of all kinds and felt betrayed.

The research makes a number of recommendations – they cover 6 pages in the report, starting at page 284, so I won’t rehearse them, but they are well worth reading, particularly for any professional involved in adoption work.

 

 

 

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Foster to adopt

Posted on March 21, 2014 by suesspiciousminds

Another bite-sized nibble at the Children and Families Act 2014.  [Warning, post contains both Minnie and Moaning]

 

The more I dig into this Act, the more troubled I become. It may be that an Act that tries to resolve family justice, educational special needs, granting licences for performing children, allowing the Chief Inspector to enter a home and seize documents and take photographs if he believes a person is unlawfully pretending to be a childminding agency, repeals the no-fault divorce provisions of the Family Justice Act that never got commenced,  employment rights for parents, whether you can smoke in your car if children are present, legislates on the shape size and texture of cigarette packets (and how you might open them), and whether it should be unlawful to sell nicotine gum or e-cigarettes to children MIGHT, I only say MIGHT, have spread itself a little too thin.

 [I’m not exaggerating, this stuff is genuinely in the Act. It’s a Children Act, an Education Act, an Employment Act, a Tax Act and a Health Act all squidged into one place]

 Today I’m looking at section 2, which is a new provision in the Children and Families Act relating to the duty on Local Authorities to consider and prioritise “foster to adopt” placements for children.

 

A “foster to adopt” placement is a foster carer who takes on the care of a child as a foster carer, but who is approved as an adopter, and who thus could move on to adopt the child if the Court’s final decision is that adoption is the right solution for the child. 

 

With anything, there are pros and cons. Here are some (list exhausting, but not exhaustive) :-

 

 

Pros  – it means that if the child does need to be adopted, the child moves once and only once (from the parent into a permanent placement). It means that the child is not waiting and forming an attachment with the foster carer only to lose that relationship.

 

It avoids delay in a permanent placement being found. It gives the Court when making final decisions a degree of confidence that a placement has been found and tested and that it works for the child. It gets approved adopters practical experience with caring for the child before making that huge commitment. It might help parents to know that the child is with someone that the child knows rather than there being a big mystery about where the child will be placed and when.

 

Cons – It can produce a feeling of fait accompli, that before the Court makes any decisions about the case that the child is already in an ‘adoptive’ placement just waiting for the rubber stamp. It can lead to adopters (already a scarce resource) bonding and connecting to a child only for the child to be rehabilitated – which is after all, the starting point in all care proceedings – how big an emotional turmoil would that be? In turn, does this lead to the carer keeping the child at ‘arms-length’ until the Court’s decision is made?

 

Is this a proper “matching process” or do you end up with a very superficial matching process? Does that lead to increased risk of breakdowns later on? It could lead to a placement for foster-to-adopt being made before a viable family member comes forward and then the child not being placed with that family member. Is there a conflict of interest in evidential terms – i.e if the foster carer hopes to adopt the child, how confident can the Court be when the foster carer reports that the child has nightmares after contact or never talks about missing mummy?  The risk of the address coming out is greatly increased, as during the care proceedings documents are produced and circulated and it only takes one slip for an address that should be redacted not to be.

 

Most importantly, does having a ready made adoptive placement for the child end up tempting the Court into making the wrong comparisons when making their final decision – rather than looking at whether the parent is good enough do professionals and the Court get seduced into comparing what the child’s life would be like with these adopters versus going home?   

 

And  of course in light of Re B-S, how confident can one be that the Court, even if approving that the child should live with these carers would want to do it under adoption rather than fostering or SGO  – doesn’t that raise the spectre of the foster-to-adopt carer being asked that specific question in evidence?  

[I think you would need to be very transparent in recruiting foster-to-adopt carers that there is a very real possibility that the Court, even if the placement with them is sanctioned, might want to do this under SGO or Care Order rather than adoption, and that they might find themselves drawn into care proceedings]

 

Another difficult issue is what this means for sibling groups – if you have a group of children and one is aged 8 and one is aged 2, should the two year old be put in a foster-to-adopt placement and separated from the other, or is it more important for them to be together?   [As we will see later on in this piece, if the s22 (9A) duty is triggered, that removes entirely the provisions in the Act that say that it is better for siblings to be together. That doesn’t feel right to me – if there’s a presumption about which is best “being in a placement where you might get adopted” or “being with your brother”  I have a different view to the Act about which way the presumption should go]

 

It is hard to try to balance the pros and cons as an overall philosophy – it depends on your perspective and stance, and whether what is more important is justice and justice being seen to be done or minimising disruption and delay for a child.  Perhaps it is the right solution for some cases, some children.

 

[I am not actually averse to concurrency placements and think that they represent a good option to have available for some cases, I am troubled by the clunkiness of how this has been rolled-out though]

 

I know that the Family Rights Group have been very concerned about the provisions, and I share some of their concerns  – they did a great job in highlighting them, sadly they weren’t listened to- I’m not convinced that the ramifications of this legislation has been thought through 

 

You can read Cathy Ashley’s piece in Community Care here.

 

http://www.communitycare.co.uk/2014/03/19/potential-injustices-likely-arise-children-families-act/ 

 

All of the complaints that Cathy makes in that piece are legitimate and she is right that interested groups were making these points when the draft legislation was published. The ills they identified have not been remedied.

 

But what I want to do in this piece is to consider WHEN the actual duty arises   (and in turn, what happens when it does)

 

Children and Families Act 2014

 

2 Placement of looked after children with prospective adopters

(1) Section 22C of the Children Act 1989 is amended as follows.

 

 (2) In subsection (7), after “subject to” insert “subsection (9B) and”.

 

(3) After subsection (9) insert—

 

“(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and—

(a) are considering adoption for C, or

(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.

 

(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

(b) the local authority must consider placing C with an individual within subsection (6)(a), and

(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.

 

(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.”

 

 

That’s rather a mouthful, but in essence

 

Where the Local Authority are considering adoption for the child OR are satisfied that the child ought to be placed for adoption   AND if they are not satisfied that a placement with a relative is the most appropriate placement for the child, they must consider a placement with a foster carer who has been approved as an adopter

 

That seems to me to be two separate circumstances

 

S22 (9A) (a) The Local Authority are considering adoption for the child

 

Or

 

22 (9A) (b) The Local Authority are satisfied that the child ought to be placed for adoption

 

 

I’ll deal with  22 (9A) (b) first, because although it is more complicated it is also easier (if that makes sense) because there’s an answer to WHEN a Local Authority are satisfied that the child ought to be placed for adoption.

 

That comes from s22 of the Adoption and Children Act 2002, which says that when a Local Authority is satisfied that a child OUGHT to be placed for adoption they MUST make a Placement Order application.

 

We know that a Local Authority cannot make a Placement Order application until they have a decision from their Agency Decision Maker that adoption is the plan for the child AND that they are authorised to make an application for a Placement Order.

 

Deep breath – therefore 22 (9A)(b) Children Act 1989 can be a duty that is ONLY triggered once the Local Authority have permission from the Agency Decision Maker to apply for a Placement Order. 

 

That would normally be at around the time that the Local Authority file their final evidence, and thus about 8 weeks away from a final hearing.  I think it is extremely unlikely that a Court would endorse moving a child from an existing foster placement into a Foster to Adopt placement 8 weeks before a final hearing, unless the parents are in full agreement.  So, I just don’t think that this will actually happen in practice.

 

 

HOWEVER

 

S22 (9A) (a) is a different matter. In effect, this means that if a Local Authority is considering adoption for the child and do not consider that placing with a relative is the most appropriate placement for the child, they must consider placing with a foster parent who is an approved adopter

 

Two distinct limbs of the test there

 

(1)   Are the Local Authority considering adoption for the child

 

How do you decide whether the Local Authority is considering adoption for the child? Are they considering this once all of the evidence is in, or is the fact that they are considering it as a possibility mean that the first limb of the test is met?   Are we getting into territory of whether they are REASONABLE in considering adoption for the child?

 

As the Family Rights Group have raised, this does create the spectre that a Local Authority who are fostering the child under a voluntary (s20) arrangement, long before the case goes to Court or the parents have legal advice, can say that they are “considering” adoption and thus have a duty to place in a foster to adopt placement.

 

(2)   The LA do not consider that placing with a relative is the most appropriate placement for the child . 

 

 

Okay, this is really important, because what this is a DIFFERENT test about placing a child with a relative.

 

The usual test

 

S22 C (7) Children Act 1989  means that a placement with a relative, friend or other person connected to the child MUST be given priority     (and thus a child will only not get placed in a family placement if the circumstances in s22C (4) are made out – that the placement is not reasonably practicable or would not be consistent with the child’s welfare)

 

Won’t apply if the LA are ‘considering’ adoption under s22 (9A)  In those circumstances, it seems that the LA can discount the placement with the relative if they think that it is “not the most appropriate placement for the child”  

 

A different quality of test.  S22C means that unless there are compelling reasons, the placement with the family member is better than foster care, and s22 9B (c) means that the LA don’t have to place with a relative unless they consider that this is the ‘most appropriate placement’   – that’s an entirely different character of test, and it is unlocked by the Jedi-hand-wave of “we’re considering adoption”

 

 

Also, WHEN is it that the LA “do not consider that placing with a relative is the most appropriate placement”?   Is it at the outset of the case, when it might be that they want to conduct an assessment first and say they can’t place until that assessment is done?  (Does THAT trigger the duty to place in a foster to adopt placement?)   OR is it after that assessment is done?

 

At the moment, the wording is so loose that it appears that if the child is being placed away from the parent under voluntary accommodation, and the child is under six, the LA would be ‘considering adoption’  and can thus decide that a foster-to-adopt placement is more appropriate than placement with a relative, and also separate the child from a sibling.  And not only CAN do it, but it appears that they have a duty to consider it.

 

I’m not suggesting that Local Authorities would do this willy-nilly or capriciously, but the point of legislation is to provide safeguards as well as powers, and this doesn’t have much. (It only takes one bad LA or one bad social worker)

 

 

IF a Local Authority were to do that, it can be argued that they are just following the duties pushed onto them by the Act.

 

[A simple solution to this would be for the LA to say that they have a duty to CONSIDER it, they have CONSIDERED it and are not going to do it as a result of the wider context of the case. That might be the angle that is taken in most cases, but it depends to an extent on whether the particular Local Authority is keen to push foster-to-adopt and has such carers available]

 

 

 

 

 

 

 

The other worrying thing is that if s229A (a) is met, s22C (7) –(9) do not apply.

 

 

(9B) Where this subsection applies—

(a) subsections (7) to (9) do not apply to the local authority,

 

What those cover are :-

 

That the placement should be within the Local Authority’s area 

That the placement allows the child to live near their original home

That if the child is disabled the accommodation provided is suitable for the child’s needs

That the placement doesn’t disrupt the child’s education or training

That if the child has a sibling, it enables the child and the sibling to live together

 

 

The implication of this is, that if the LA are considering adoption and aren’t placing with a relative, their DUTY is to consider a foster to adopt placement EVEN though this would mean separating the siblings – the foster to adopt takes priority over siblings.

 

 

Given that ‘considering adoption’ triggers these duties (which can involve not placing with a relative because it is not the ‘most appropriate’ placement, and separating siblings) it seems a glaring omission that such a powerful test is not defined properly.

 

I also think that placing in foster to adopt is such an important issue that the Act ought to have said that this can be done only with either  the permission of the existing holders of parental responsibility or the permission of the Court.  That would have cut through most of the worries.

 

 

Without this provision, one is looking to the Court to be the safeguard check and balance. It will be the Court who would be endorsing the care plan put before them. The Court would be taking account of the fact that the Local Authority’s duty is to seek a foster to adopt placement even though that means separating brothers or sisters, but the Court is not bound to prioritise foster to adopt above siblings being together.  (that priority setting bites on the Local Authority, not the Court)

 

I suspect that the Court would want to tell the Local Authority that their plan to place one child in a foster to adopt placement and another child in a separate foster placement (because one is young enough for them to be ‘considering’ adoption, and the other is not) is not approved and to change it if they want their Interim Care Order.

 

 

However, that then gets into territory of a wholly different kind, because the Children and Families Act 2014 also changes the role of the Court in scrutinising care plans

 

S15 Children and Families Act 2014

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A

plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

The argument here, I think, would be that whilst the Court is not REQUIRED to consider in the care plan whether the siblings are together, they are not PROHIBITED from doing so. 

[Or being very creative, saying that siblings are including within section 31 (3B) (a)  since you are deciding whether the child can live with  any member of the child’s family – it says ‘live with’ not  ‘be cared for by’]

 

Finally, if you are interested, having a child placed with you in a foster-to-adopt placement doesn’t trigger any adoption leave entitlement that exists in other legislation, until the child is actually formally placed for adoption (that’s tucked away in s121 of the Children and Families Act 2014)

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If you can’t do what you’re told, the Minister will take your role away from you

Posted on March 18, 2014 by suesspiciousminds

 

A bit more dissection of the Children and Families Act 2014 (or perhaps autopsy is a better word)

This is the provision in the Act, brought in without much fanfare, without pickets or protests, but it might end up being significant

section 4 of the CFA 2014 makes an amendment to the Adoption and Children Act 2002, giving the Secretary of State (that would be the Education Minister, i.e Michael Gove at present) the power to take the functions of the adoption agency away from a particular Local Authority and give those functions to another adoption agency. These powers kick in from 1st March 2015.

Well, that’s the stick to beat Local Authorities with when the adoption targets get published and they are not doing what Michael Gove wanted them to do. Given the upheaval in adoption law in 2013 which is still rippling through the system, it would be rather a surprise if the next batch of figures weren’t full of delays because of the volume of appeals and cases being adjourned and evidence resubmitted to avoid appeals. I think most people were expecting that at some point after the legal tables were publised, a Local Authority would be singled out and have their adoption agency functions taken off them.

What is rather more surprising is the next power, which will be a new section 3A (2) of the Adoption and Children Act 2002

The Secretary of State may by order require all local authorities in England to make arrangements for all or any of their functions within subsection (3) to be carried out on their behalf by one or more other adoption agencies.

(Subsection 3 set out that those functions are recuitment of adopters, assessment and approval of adopters, and matching of adopters to children.  Please, anti-adoption campaigners, don’t get over excited and think that this means that the bit you really have a problem with – social workers being able to RECOMMEND adoption for a child and seek orders to achieve that, is going to be taken off social workers, it doesn’t mean that at all. This is about the bit that happens AFTER the Courts have made the orders, and relates to finding the right people to provide permanent homes for children)

If you have missed the significant word in s3A(2) it is ALL.   The Secretary of State can, at any time after March 2015, with no parliamentary scrutiny or approval, decide that the assessment of adopters and matching of children with adopters won’t be done by Local Authorities any more, take it off all of them and give it to other adoption agencies.

That would be, presumably to independent Voluntary Adoption Agencies. There are around fifty of those in England – some are Catholic societies, some regional agencies and of course agencies like Barnardos. These organisations do a great job and fill a valuable role, and I am not knocking them or the quality of their work. But doing what they do, and doing it well, doesn’t mean that they are in a position to take ALL of the adoption work that is being done by individual Local Authorities at present.

And what do you do if you move it all over, disband all of the Local Authorities teams and staff and local knowledge and expertise, to deliver better stats, and the stats don’t get any better ?

(not that this would happen of course, because the private sector has a flawless record of taking over public sector functions and delivering them on time, to budget, with no loss of quality. IT projects, cleaning hospitals without incubating MRSA, building schools, private prisons, security for the Olympics, consultancy that states the bleeding obvious. I could name the companies who do such sterling work, but you can read about them for yourself in almost every edition of Private Eye)

There’s nothing said about the circumstances in which Michael Gove or his successors might exercise this massive power.  Luckily we can take it as read that no Government Minister ever has, or ever would, take measures for political gain without serious regard for the consequences.

There’s nothing in the section about TUPE either – the general provision of TUPE is that if the functions transfer, so do the staff  (this in very broad terms, I’m not an employment lawyer and would not attempt to give employment law advice).  Not sure how that works if the Voluntary Adoption Agency  (a term that I can already sense is making blood boil over in Monaco) is based three hundred miles away.  There’s also nothing in there about procurement – if the Government is going to dish out juicy contracts for public sector work to a variety of private sector agencies, there has to be a proper tendering process for the distribution of those contracts, in line with European procurement rules.

Seems a bit odd to me that the Government boast in the press releases to the Act that it will speed up justice for children and allow decisions to be reached faster, but are only prepared to wait a year to see how those changes bed in and affect the pace at which children who the Courts have approved for adoption are being found places.  Also slightly odd that the assessment of adoption support plans and management of those budgets isn’t included in the functions that would transfer over.

 

 

 

 

 

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