Category Archives: adoption

Obtaining a fresh assessment late in proceedings

Posted on March 17, 2014 by suesspiciousminds

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 [‘the Regulations’]. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child’s] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

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Posted in adoption, assessment of risk, case law, children and families act 2014, experts, timescales and tagged , , , , , . Bookmark the permalink.

Legal aid for section 51 applications – contact post adoption

Posted on March 17, 2014 by suesspiciousminds

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.

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Posted in adoption, children and families act 2014, contact, costs and tagged , , , , , , . Bookmark the permalink.

Applying for contact AFTER a child is adopted

Posted on March 16, 2014 by suesspiciousminds

The family law provisions of the new Children and Families Act 2014 come into force on 22nd April.

The Act itself (as opposed to press releases boasting about how it will solve everything, give us free energy, a perpetual motion machine and bring peace and harmony to both the Middle East and the pro and anti-Europe wings of the Tory party) can be found here

Click to access ukpga_20140006_en.pdf

There’s a LOT of it, so am going to try to tackle it in chunks. Today’s topic is going to be the new section 51A of the Adoption and Children Act 2002, which makes provision for applications for contact AFTER an adoption order has been made.

Historically, Courts have been able to consider applications for the contact that a parent would have POST-ADOPTION, but that application and determination of it would have been BEFORE the adoption order was made. Thus, the adoption order would in effect be the last time the child would be the subject of litigation, and the Court’s involvement in their life would end.  (There are exceptions – as we saw in Re W the President was willing to overturn an adoption order to hear an appeal, there are adopters who end up being involved in subsequent care or private law proceedings themselves, but generally, once the adoption order itself was made, the Court were done with the child)

So, what about post 22nd April? Well, s9 of the Children and Families Act 2014 says this :-  [bold bits are mine, for emphasis]  – and it is important to note that this doesn’t just apply to adoption orders made after 22nd April, it applies to ALL adoption orders

9 Contact: post-adoption

(1) After section 51 of the Adoption and Children Act 2002 insert—

“Post-adoption contact

51A Post-adoption contact

(1) This section applies where—

(a) an adoption agency has placed or was authorised to place a child for adoption, and

(b) the court is making or has made an adoption order in respect of the child.

(2) When making the adoption order or at any time afterwards, the court may make an order under this section—

(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b) prohibiting the person named in the order under this section from having contact with the child

(3) The following people may be name d in an order under this section—

(a) any person who (but for the child’s adoption) would be related to the child by blood (including

half-blood), marriage or civilpartnership;

(b) any former guardian of the child;

(c) any person who had parental responsibility for the child immediately before the making of the adoption order;

(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with

children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e) any person with whom the child has lived for a period of at least one year.        [This has a cut-off of not applying if it was more than 5 years ago, but seems to me that it would potentially cover relatives who cared for the child, foster carers, and possibly siblings]

(4) An application for an order under this section may be made by—

(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b) the child, or

(c) any person who has obtained the court’s leave to make the application.

(5) In deciding whether to grant leave under subsection (4)(c), the court

must consider—

(a) any risk there might be of the proposed application disrupting

the child’s life to such an extent that he or she would be harmed

by it (within the meaning of the 1989 Act),

(b) the applicant’s connetion with the child, and

(c) any representations made to the court by—

(i) the child, or

(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made

Obviously, there’s a lot there, and it is written in Law not English.

The nub of it is, a birth parent, or someone with whom the child has lived for at least a year, can apply for an order for contact with that child, including staying contact, and the application can be made AFTER the adoption order is made.  They will need Leave of the Court to make that application – i.e there is a two stage test – can you persuade a Court to give you permission to make an application for contact, and then the Court deciding whether your application succeeds and you GET contact.

Leave applications are tricky – if you imagine that there’s a high jump bar, and that the parent will get leave if they can jump over it, and won’t get leave if they can’t, that’s a helpful way to look at it. The problem is, making sure that everyone knows exactly how high that bar is set and that a Judge doesn’t end up setting it too high, or too low. (That has been the subject of much of 2013s  law developments, with the Court of Appeal concluding that the bar on leave to oppose adoptions has been set too high for parents and needs to be adjusted to make it a fair test)

This test is contained in s51(5) which says that the Court MUST consider whether granting permission might disrupt the child’s life to such an extent that they would be harmed by it  (note that this is NOT whether contact would cause that harm, but allowing the ARGUMENT about contact would cause that harm). The wording here is strange, in that the reference to ‘harm’ then says in the meaning given in the Children Act 1989.  Does that therefore mean ‘significant harm’?

The Court MUST also consider the applicant’s connection with the child, and any views expressed by the child or the adopters.

You would have to say, in light of Re B-S, Re W et al of 2013, it is at best uncertain as to how any application for leave under s51 to apply for a contact order post adoption order being made would go. What we DO know is that the application would have to be served on the adopters (presumably via the Local Authority, as the parents won’t know the adopters address), and they would be represented in the leave argument hearing.

We don’t know whether public funding would cover a parent making a s51 application – it certainly isn’t automatic, which puts the parents in the hands of the generous discretion of the Legal Aid agency in making that decision. The adopters won’t automatically get legal aid to fund their legal costs either, even if they financially qualify.  That probably leaves the adopters going cap in hand to the Local Authority asking for help with legal fees, or paying out of their own pocket, or trying to represent themselves  (I honestly can’t see how the latter would work, particularly if the parent is representing themselves too)

In reality, a leave application can need the filing of evidence and a few hearings before the fight itself can take place. Note that in this leave requirement (unlike revocation of an SGO or Placement Order or leave to oppose adoption) there’s no requirement on the parent to show change or significant change since the order was made – they can just say that they want to have contact with their child.

The leave application can be a worrying and anxious time. It can potentially unsettle the child.

So my question really is

For a birth parent – is this a power that is potentially going to end up in you being able to get contact with your child post adoption, in which case it would be a good thing for you, or is it a ‘fake’ potential avenue that is actually a dead end just putting you through stress and optimism and then disappointment as each and every application for leave is refused? If it is the latter, why even put it in the Act?

For adopters – how does having this provision, knowing that you could be drawn into court proceedings and having to file statements and have arguments in court about contact, after the adoption order was made, make you feel?  And again, are they applications that have a chance of being made, or are you going through stress and anxiety for nothing?

Unless you are actually going to make s51 contact orders on parents applications after the adoption orders being made, it seems to me to just cause emotional pain to the parents because of false hope, and emotional pain and anxiety to adopters as they go through the process.  Does that then suggest that Parliament envisages that in some cases (not just the exceptionally rare ones) parents will succeed in these applications and get their contact?  And how will that change the character of adoption?

And in a final round-up, what prevents a parent who fails to get leave under s51 making another application next year, or the year after, or the year after that? They may never get their s51 leave, but they could hope to make life awkward and difficult for the adopters, maybe get the adopters worn down to offer a compromise or agree the contact sought.

Well, what “stops” this sort of hopeless, frivolous or vexatious litigation in the Children Act 1989  (and ‘stops’ is a bit strong) is section 91(14) of the Children Act 1989, which gives the Court the power to say to a person who is making those applications, you can’t make them any more – or not without leave of the Court anyway

s91 (14)On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.

Two problems with this

1. s91(14) applies to orders or applications made under the Children Act, whereas a s51 application is made under the Adoption and Children Act 2002 – there’s no provision similar to s91(14) under the Adoption and Children Act  (why would there be? Up until now, all applications ended once the adoption order was made)

2. Even if it did, all it does is turn the 2 stage test?  (May I make the application, can I have contact?) into a 3 stage test (may I ask whether I may make the application, may I make the application, can I have contact?)   And stage 1 still involves the adopters being notified, and having to come to court and fight the first stage, so really, what difference does it make?

So, to stop s51 applications being rained down on the adopters, the only real mechanism is to apply to the High Court to have the applicant declared as a vexatious litigant.  That forbids them from making any Court application without permission of the High Court   (so, we are back to the 3 stage test, with the problems already discussed)

[if you are interested further in the concept of vexatious litigants, this is a good speech on the topic, which gives the history and some projections for the future  http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006 ]

You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents. It has effectively two strands  – if the contact is agreed don’t make an order, and if the adopters don’t agree the contact there would need to be very compelling reasons to impose it on them.  (Are those guidelines dead in the water now that s51 is upon us? Is there genuinely a different ethos in Parliaments, and thus the laws view on making contact orders against adopters? We’ll have to wait and see how the Court of Appeal views this)    .

 
 
ADDENDUM EDIT
 
 
I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.
 
But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)
 
For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.
 
For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.
 
As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.

 
 

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relatives and 26 weeks – a reported Auntie Beryl case

Posted on March 12, 2014 by suesspiciousminds

 

It has been a vexed issue ever since the 26 week guillotine came in, heightened by the Supreme Court and Court of Appeal’s emphasis on adoption as ‘last resort’ where nothing else will do  – what is a Court actually going to do when a relative comes forward at week 20, week 22, week 24, and assessment of them would derail that all-important timetable?  This is something I dubbed the “Auntie Beryl” question, and it is one that crops up in these cases around the country.

We won’t really know until a Judge somewhere tells Auntie Beryl that she is too late, that she should have come forward sooner, that she can’t be assessed, and makes an adoption order. Then that will be appealed and the Court of Appeal will try to square that circle of “26 weeks” with “nothing else will do”

In this case, which is the first to touch on this point since it became a genuinely difficult issue  (since pre 26 weeks, the assessment would ordinarily be done), the High Court attempted to deal with it.

Re K (A minor) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4580.html

The grandparents in the case put themselves forward as alernative carers really early on, just after the child was born. A “guardedly positive” viability assessment was prepared.  At a hearing in March 2013, the grandparents decided with a heavy heart that they weren’t able to offer a permanent home and withdrew.

However, by 6th March when the case came on at this court, grandmother and grandfather had come to the conclusion, I am sure with an extremely heavy heart and sadness and feelings of regret, that it was not right to pursue the application. The grandmother wrote on behalf of herself and her husband to the Circuit Judge. She wrote that that it was the hardest letter she had ever had to write, that they loved K and have a bond with him, but they want what is best for him. She said that although it broke their hearts, they had to put their feelings to one side and focus on K. She said that health issues which had not initially seemed significant enough to affect them caring for K, had come to the fore during the assessment process. She was having tests for Multiple Sclerosis, and the results so far were pointing towards an MS diagnosis. The grandfather, who had had a heart attack two and a half years previously, had started having chest pains. They had done a lot of soul searching, and after a lot of deliberation and tears, decided that it was unfair to K for them to put themselves forward as carers. They could not give him 100 per cent, which they believed he deserved. They wanted him to have the very best in life, and if they truly believed they could give him this, they would still be seeking special guardianship. But they had to be realistic, so that he could have a happy, loving, secure and stable upbringing. If their health deteriorated any more, it would be hard to meet all his needs. They would always have him in their hearts, and drew strength from knowing that he would have a happy loving childhood with a family that loves him. It would be unfair for him to live with them if he would then have to live with someone else because they were unable to care for him. They hoped that K would understand when he is older that they had done this for him, to give him the best possible life.

 

In due course, having completed assessments of the parents, the Local Authority’s plan was for adoption.

Today is 8th May 2013. Last Friday, the grandparents, through their solicitors, issued their application, returnable today. The grandmother wrote another letter to the court. She wrote that they had not expressed themselves correctly in her previous letter. They were 100 per cent committed. They had wanted to tell the judge the real reason that they were pulling out but could not, because they were scared that at a later date when K was older, he would read the letter and it would upset him. She said that they did have some health problems, but that the real reason for withdrawing was that they were terrified that if they were awarded special guardianship there was nothing to stop K’s mother or father seeking and obtaining custody of K. Then he would have been subjected to their lifestyle and would have been at risk. They have since learned that this could not happen because the parents’ legal aid funding had ceased and they would never be able to make an application. They had always thought and believed that K deserved to stay with and have the benefit of his loving, large, warm and close natural family, and this would be best for him emotionally.

 

The May hearing was pushing very close to the 26 week deadline. It certainly would not have been possible to undertake the Special Guardianship assessment within that period – in fact, the assessment would have required another 12 weeks, pushing the case from a six month case into a nine or ten month case.

The Court had a hearing to decide whether to grant the grandparents leave to apply for a Special Guardianship Order (i.e to delay the final hearing to obtain that assessment) and heard some limited evidence from the grandmother.  The Court referred to the case law in relation to applications for leave (although personally, I think the caselaw cited is somewhat out of date, and there is substantially more recent authority making it plain that it is a more nuanced procedure balancing all of the factors rather than Re M 1995’s rather ‘soundbite’ approach – the Court of Appeal in Re B (A child) 2012 [2012] EWCA Civ 737  – in fact, the Court of Appeal say that rather than s10(9) containing a ‘test’ or anything like a ‘test’ to be crossed it simply tells the Court to have ‘particular regard’ to certain factors, whilst other factors can by implication be weighed in the balance too)

The Judge concluded

    1. I am sure that this application is entirely well meant and good-hearted. But it is emotional, unconsidered, unrealistic, and not thought through, I suspect that the prospect of losing contact with K has been a very powerful factor here.

 

    1. No doubt in March the grandparents reached their considered but painful decision to agree to a firm plan for this little boy for adoption with difficulty, but focussing on the child. I am afraid that whatever the love that the grandparents have for K, that their approach at the moment is not child-focussed in the objective way required. The grandparents know very well that they cannot properly commit themselves to this task. This came through in the grandmother’s evidence, when she had to face up to reality. They know that their health problems are important. They are aware of the potential disruption which could be created for K, particularly by his father, but perhaps by the mother too when she is in a less sanguine state of mind, for the rest of K’s minority. Although Mr. Taylor quite rightly stresses the benefits of this warm and close family, that was available in March when they made their decision.

 

  1. I am satisfied that there is a very significant risk that the proposed application will disrupt K’s life to such an extent that he would be harmed by it. I am quite satisfied having had the opportunity to assess in sharp and painful focus what the problems are likely to be, that this application has no real prospect of success. So I do not simply bring the guillotine down on the basis of 26 weeks. This is a summary decision but it is welfare based nonetheless, and based on an evaluation of the facts. It is for me to factor in all these considerations in K’s interests. Therefore I refuse the application.

 

Not quite an Auntie Beryl case in that the Court felt that there was enough information to say in effect that the grandparents application was not going to be successful even if the proceedings were delayed – rather than there being a paucity of information about the family member due to late presentation.

Parker J then gave some general guidance

    1. Cases where relataives or friends come forward at the last minute are likely to present the greatest challenges to the court in complying with the 26 week limit. The Court has a duty to consider whether there are alternatives to a care order. But in my view the court is entitled to dismiss such an application without detailed assessment and must take into account delay.

 

    1. Some measures may assist the court to manage such applications :-

 

a. Orders must record that parents have been advised that failure to identify family members at an early stage is likely to preclude their assessment and that the case will not be adjourned.

b. Where a relative has come forward and then withdraws a court should record that that person understands that this is their final decision and is unlikely be revisited without the strongest justification.

c. Any application for further assessment or joinder by a relative or other person must be resolved very swiftly. Such applications will usually be able to be dealt with on paper. Oral evidence, to be adduced only if necessary and proportionate, should be short and focussed.

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There’s Norway you are serious about a costs order

Posted on February 28, 2014 by suesspiciousminds

 

The Court of Appeal in Re S (Children) 2014 set aside another Care Order and Placement Order and sent the case back for re-hearing because the judgment was not sufficiently rigorous and “B-S compliant”. No great surprise there – it is something of a novelty these days when the Court of Appeal uphold a judge who makes these orders. What is a bit peculiar is making an order that the LA pay the appellants legal costs, nearly fourteen thousand pounds.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/135.html

You may recall that the Supreme Court in Re T *dealt with the temptation to make Local Authorities pay costs to parties who won their case but had to pay for their own legal advice, rather than getting it for free, and were very plain that in the absence of bad conduct by the Local Authority, Courts should not make costs orders against Local Authorities just because they have money and the other side had bills.

 

* https://suesspiciousminds.com/2012/08/07/when-they-begin-to-intervene/   is the Re T blog

Why is this one, which involves a series of complex international issues and the father moving to Norway to live permanently during the hearing, different to Re T? Well, I can’t work out why not, reading the judgment.

There was an appeal recently  (Re C 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html ) where a Local Authority got stung for costs, but in that one it was chiefly as a result of the LA counsel having a series of peculiar email exchanges with the judge at first instance, not being properly frank with the High Court judge during their own appeal and not having properly accepted that the evidence at first instance had sunk their case. That, in the view of the Court of Appeal had amounted to bad conduct, and thus a costs order could legitimately be made

A word in your shell-like

 

In this one though, the judge at first instance is criticised for not giving full enough reasons for refusing further assessment of the father and for not robustly tackling the Re B-S issues in the judgment. That’s not the fault of the Local Authority, that’s due to the Judge.

    1. The father has funded this appeal privately and seeks his costs in the sum of £13,787.70. He does not aver that the local authority have engaged in reprehensible behaviour or took an unreasonable stance in the hearing at first instance to justify a departure from the normal rule that costs are not awarded in children’s cases. However, Mr Bainham argues that the judgment in Re T (Children) [2012] UKSC 36 to this effect is directed at first instance hearings where public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children from pursuing proceedings. Likewise, in the case of an appeal neither should a parent be deterred from challenging decisions which impact upon the most crucial of human relationships. Ms Markham argues the case is not so restricted and resists the application.

 

    1. I consider the question of costs in the appeal to be of a discrete category and the discretion of the Court broad. Re T is distinguishable for the reasons argued by Mr Bainham.

 

  1. In this case, Ms Markham has been forced to recognise the deficiencies of the judgment of the lower court but nevertheless has resisted the appeal. In the circumstances of the father’s limited means, already decreased by his travel from Norway to the United Kingdom to exercise contact, I would grant his application and order costs in the sum of £13,787.70.

 

It is that difficult sum which means that the costs of taking this case to the Supreme Court to correct that decision (which I respectfully suggest is wrong)  dwarf the amount ordered, so the decision will only be appealed if the LA involved decide that there’s an issue of principle involved.  As a long-standing advisor to Local Authorities, I know well that whilst someone at the coalface will say “It’s not the money, it’s the principle of the thing, let’s appeal”, someone higher up the chain of command who makes that decision will say “It’s not the principle, it’s the money, let it go”.   I can see why the Court of Appeal made that decision – the father had won his appeal and yet was out of pocket, Local Authorities (in the eyes of the Courts) have bottomless pockets – job done; but I think it flies in the face of Re T.

I hope they do appeal, and I think they would win; but I suspect pragmatism will win out over the principle of the thing.

If father incurs costs as a result of a flawed judgment, why aren’t his costs paid for by the Court service?  Don’t ever see the Court of Appeal deciding that…

 

The other unusual element here is the Court of Appeal suggestion that the Lucas direction (just because a person lies about X, doesn’t mean that they are lying about the major issue in the case) ought to be expanded

It has become de rigueur for a trial judge expressly to articulate their self direction in accordance with R v Lucas [1981] QB 720 in fact finding hearings. That is, the significance that may or may not attach to the lies told by a party in relation to the injury/ behaviour in question. There is none such in this judgment which deals with outcome. A specific reference to the same is unnecessary but I do consider that it was unrealistic for the judge, and the professionals not to have appraised the same exercise in the context of the non disclosure and/or deceit in question. The fact of a parent’s non disclosure or deceit is not necessarily determinative of parenting capacity or, depending on the circumstances, an ability to co-operate with the authorities.

You have been warned.

[The list of things that need to go into a final judgment now to make it bullet-proof is swelling – good news for those transcription firms that are charging by the page]

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And I ain’t talking ‘bout chicken and gravy

Posted on February 21, 2014 by suesspiciousminds

I’m afraid that I have to tackle the Court of Appeal decision in Re M (A Child) 2014, but it relates to Brussels II, article 15 and the Vienna Convention, and frankly it is hard for even me to have any enthusiasm for it

 So this is better – not sure who wrote this translation of a Human Rights blog article so that Snoop Doggy Dogg is the only person alive who could understand what is being said, but courtesy of John Bolch over at www.familylore.com   it did entertain me

 

http://www.gizoogle.net/index.php?search=http%3A%2F%2Fukhumanrightsblog.com%2F2012%2F11%2F21%2Fthe-bailii-lecture-no-judgment-no-justice%2F&se=Gizoogle+Dis+Shiznit

 

Sample :-

In relation ta tha straight-up original gangsta requirement, dat shiznit was blingin ta recognise dat tha hood was tha real crew: judgments had ta drop a rhyme ta tha public, as well as ta tha lawyers n’ litigants, n’ you can put dat on yo’ toast. They should therefore be sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about.

 

Quite so.  

 

Sigh, onto Re M

 This is the appeal from Mostyn J’s decision

 https://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

 in which, to be fair, he had clearly grasped that there were some wider public policy issues that were worthy of being looked at by the Court of Appeal, so gave a judgment which made it plain that he expected / indeed wanted to be appealed.

 

The issue that troubled him was the argument in the case that where one of the parents is from a European country that DOESN’T have non-consensual adoption, shouldn’t the presumption be that the case SHOULD be transferred to that country under Brussels II article 15. That’s what he went for in the end.  

[You can see some force in it, but the consequence of it is that you get a “Get out of Adoption free” card so long as one of the parents is from a country in the EC that isn’t Britain]

 You may also recall, that although this appeal was pending, the President got stuck into many of the Brussels II issues that Mostyn J had raised in Re M, and gave a judgment in a case called Re E

 

https://suesspiciousminds.com/2014/01/14/this-means-nothing-to-me-ahhhhh-vienna/

 

I speculated at the time that this was something of a pre-emptive strike to the Re M appeal, and I also speculated that (a) The President would find himself sitting on that appeal and (b) that the Court of Appeal would probably not stray far from Re E

 

Well, how wrong I was

 (Wait, no, I wasn’t)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html

 The Court of Appeal’s panel of three Judges did include the President, and Re E was greatly preferred to Mostyn J’s decision in Re M

 

The Court of Appeal heard the argument that where a parent is from an EC country and adoption is an issue, there should be a presumption that the case SHOULD transfer to the country that DOESN’T countenance non consensual adoption.

 

They also heard the argument that the opposite presumption should apply, as only a Court that can hear and consider ALL of the options can do it properly.

 

The Court of Appeal, being no mugs, decided instead that there was no presumption either way and that BRII should be decided on the circumstances of the case and that the wording of article 15 needed no gloss or subtext

 

15.   ) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

 

51. There is, in my judgment, no room for a “sub-text” in the interpretation of B2R, as the judge held at [29]. Still less is there any room for a sub-text that directly contradicts the basic policy of B2R as set out in recital (12). So the real question is whether the judge’s view that there was a sub-text of the kind that he identified vitiated his balancing exercise. It is difficult, in any event, to shake off the impression that the text of the judge’s judgment had its own sub-text, which he had articulated at [29]. But even allowing for the fact that he posed himself the right questions, I agree with Ryder LJ, for the reasons that he gives, that his answers were vitiated by his mistaken view of the underlying policy of B2R.

 

And 54

 

  1. The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child’s interests. Judges should focus on the language of Article 15: will a transfer be “in the best interests of the child”? That is the relevant question, and that is the question which the judge should ask himself.

v) In relation to the second and third questions there is one point to be added. In determining whether the other court is “better placed to hear the case” and whether, if it is, a transfer will be “in the best interests of the child”, it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is “territory into which I must not go.” I refer in this context, though without quotation, to what I said in Re E, paras [17]-[21].

vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

vii) Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 “will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.”

 

 

Note the strong remarks made by each of the Judges about the need for the issue of which jurisdiction should properly hear the case to be fully considered at an early stage

 

 

47 Jurisdiction must be considered in every children case with an international element and at the earliest opportunity i.e. when the proceedings are issued and at the Case Management Hearing. 

 

 

And the President

 

  1. The ultimate outcome of this appeal should not be allowed to obscure the great importance of Article 15. In the nature of things one cannot be sure, but I have an uncomfortable feeling that Article 15 has hitherto played far too little part in the daily practice of our courts and that its great importance has not been as widely appreciated as it should be. I repeat what I said in Re E, paras [35]-[36]:

“It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

(i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital.”

I added: “Judges must be astute to raise these points even if they have been overlooked by the parties.”

  1. It is also vital, as this case has demonstrated, that the Article 15 issue is considered at the earliest opportunity, that is, as Ryder LJ has pointed out, when the proceedings are issued and at the Case Management Hearing. I agree with him that the Family Procedure Rules Committee should be invited as a matter of urgency to consider appropriate alterations to Practice Direction 12A to ensure that this happens in future

 

I’m not sure, if I read this judgment that it is sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about, but that’s no easy task, you get me?

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Re B-S can itself be the change of circumstances

Posted on February 14, 2014 by suesspiciousminds

The Prospective Adopters v London Borough of Croydon 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/331.html

In this case, the father was seeking leave to oppose an adoption order, that adoption arising from a Placement Order made on February 2012, in relation to proceedings that have now been going on for five years. There have been unsuccessful appeals to the Court of Appeal and the Supreme Court. The father has lodged an ECHR claim, and that has not yet received any date or directions.

It is not altogether surprising that the leave to oppose application found its way up to the High Court, given that history of litigation.

Here are the five points on which the father based his claim of a change of circumstances (that being the first limb to meet the statutory test to oppose adoption – the second being in effect a balancing of the solidity of the case against the impact on the child of reopening the case)

a) The effect of Re B and Re B-S;

(b) The alleged cancellation of one or possibly two periods of contact in June 2013;

(c) Improvements in the health and development of the subject child; and

(d) The pending application in the ECHR.

(e) The paternal grandmother obtaining her leave to remain in the UK

The High Court  (corrected from earlier error) had little difficulty in rejecting (b), (c) (d) and (e) as not being  changes in circumstances since the Placement Order was made and thus not meeting the first limb of the test.

  • First, it cannot possibly be said that the cancelling of one or possibly two periods of contact in June 2013 gets close to a change of circumstances. There was a genuine mistake made by a social worker and there was an offer to make up the lost contact. The argument was modified by Mr Macdonald in submissions to be based on the fact that the Applicants had previously supported twelve periods of contact between N and her Father after adoption but were now saying there should be only four. This has just as little merit. The Judge had considered this in detail in his judgment and had preferred the Local Authority position which was for four periods of contact, rather than that of the Guardian (or even the Applicants) for more. He approved the Care Plan which provided for four contact visits, so there has been absolutely no change in circumstances. 
  • Second, it is alleged that there have been improvements in the health and development of N. The only relevance of this, in my view, would be if it meant that she was going to be able to be independent by the time she attained her majority rather than remaining dependent on the Applicants. 
  • Whilst it is quite clear that there have been improvements in her physical condition and, in particular, in relation to the tracheotomy, it is clear that she remains a very disabled child. I have a medical report from Dr O, a Consultant Community Paediatrician dated 21st January 2014 which makes it clear that N has cerebral palsy (spastic diplegia); autism (diagnosed since the hearings before HHJ Atkins); and global development delay as well as speech and language delay. She is inattentive and impulsive. She is likely to have significant and complex communication needs. It is right that Dr O has not seen N recently. At the PTR, I gave permission for the doctor to be asked three follow up questions. I do not have the answers to hand as yet but it is clear to me that there has been no significant change of circumstances in this area. 
  • The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.  

Fourthly, the Paternal Grandmother has, since the judgments of HHJ Atkins, been given permission to remain in this country, albeit initially for a two year period. It seems pretty clear that this will, in due course, be extended so as to enable her to become a British Citizen. Again, this is most certainly not a change of circumstances. The expert evidence before Judge Atkins considered this was the likely outcome, even if the reason seems to have been different to that postulated at the time. Moreover, the case against adoption was in part based on the possibility of the Father and Paternal Grandmother being removed from this country if the placement order was made. Although this argument was firmly rejected by the Judge, it is impossible to see how the favourable resolution of the Grandmother’s position can assist the Father in alleging a change of circumstances. It follows that this ground also fails.

That left the “The change in the law with Re B and Re B-S is in and of itself a change of circumstances” point. 

  • It is, however, the final ground with which I have had the most trouble. It is argued that the effect of Re B and Re B-S invalidates the decision to make a placement order and is therefore a sufficient change of circumstances to warrant the Father being given permission to oppose the adoption. 
  • I do not propose to deal with arcane arguments as to whether or not the Supreme Court and the Court of Appeal were merely stating the law as it has always been. The simple fact of the matter is that HHJ Atkins did not have the benefit of those judgments when he gave his judgments. 
  • I have come to the conclusion that is impossible to say that Judge Atkins applied the test in Re B. In doing so, I am not being critical as he did not have that test available to him. It is though right that he did not find that adoption was “necessary” nor that “nothing else will do.” In fact, he found the opposite. He found that special guardianship was a “possible solution” albeit with disadvantages. He found adoption to be “the best solution” rather than the only solution. 
  • It is, of course, quite possible that, if he had properly directed himself, he would have come to the same conclusion but he has not said that. Moreover, I take the view that it is impossible to come to that conclusion in the way that Black LJ was able to do in Re J. 
  • I must consider the fact that both the Court of Appeal and the Supreme Court dismissed the Father’s appeals. It is, though, undoubtedly the case that the Court of Appeal did not dismiss the appeal on the basis that a proper construction of the judgment was that there had been a determination of the competing arguments between special guardianship and adoption. The judgment in the Court of Appeal is entirely based on the fact that the Judge had not been asked to perform this exercise. The subsequent cases have made it clear that he should have done so. 
    • I have therefore come to the conclusion that there has been a change of circumstances in accordance with section 47(5)

That is a somewhat huge decision, suggesting as it does that a parent need make no actual changes themselves of any kind post the making of a Placement Order, but can rely on the legal requirements of a judgment having changed a YEAR after the judgment was delivered, to demonstrate a change in circumstances.

That also leaves individual cases poring over this decision and that in Re J (see below) trying to work out which of the two camps that particular case falls into.

  • In Re J (A Child) [2013] EWCA Civ 1685, Black LJ dealt with the approach to judgments given on the issue before publication of the decisions in Re B and Re B-S. She said:- 

    “I have already remarked that the judge’s judgment is short. It has to be borne in mind that the judge can hardly have been aware when he gave it of the intense focus that there would be this year on the form and content of judgments…However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions…it is not incumbent on a judge to replicate all the evidence in his judgment, provided that he identifies sufficiently the evidence he has accepted, what he takes from it and what findings he makes based upon it. In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to, and answered the key questions. We can see from it why it was that he made the orders that he did.”

Okay, so father met the first limb of the test, but given how technical the limb was met, it can hardly have the requisite solidity to move forward to a contested adoption, can it?  It absolutely can, and it does.

 I must now turn to the second question, namely whether or not the Father has shown that his prospects of success are more than just fanciful but have solidity. I cannot say what conclusion I will come to when the arguments in favour and against adoption are correctly marshalled before me. I can, however, say that it is not inevitable that the end result will be adoption. It follows that I have concluded that the prospects of success are not fanciful and do have the required solidity.

  • My paramount concern is the welfare of N. Mr Main Thompson for the Local Authority rightly concedes that, given her disabilities, it will not adversely affect N’s welfare if I give permission so her welfare is not a ground for refusal. 
  • I have been troubled about the position of the Applicants. I do not want them to suffer undue distress, which I accept could itself have a detrimental effect on N. In this regard, however, I am reassured by the evidence that was before HHJ Atkins. They were asked in writing as to their views and they said that their priority was to provide consistency and stability for N and that the type of order made by the court was, for them, less important than this. I recognise that they now seek an adoption order but it is not a case where N was placed with them solely on the basis of a placement order. 
  • To reassure them further, I make it quite clear that there is no question whatsoever of N being removed from their care. The Father’s appeal against the final care order has been dismissed and he can have absolutely no complaint about that. He has been excluded as a carer and that will remain the position. The issue is solely between special guardianship and adoption. I make it equally clear that, by giving leave to oppose, I am not indicating that I favour special guardianship over adoption. I will decide on the evidence. I am merely saying that the Father is, on the authorities, entitled to have the matter heard and properly determined. 
  • I therefore give the Father leave to oppose the adoption application. As I indicated at the beginning of this judgment, I am very troubled by the immense delay that has taken place in this case. I will hear the case with a two day time estimate commencing on 30th April. It will not be adjourned. It will be reserved to me. The hearing will concentrate solely on the issues identified in Re B and Re B-S. I will not consider anything else. If there has to be oral evidence, it will be extremely strictly controlled.

The contested adoption hearing will not, therefore, be Adoption v return to father’s care, it will instead be Adoption v Special Guardianship Order to the people who wanted to adopt the child.

Perhaps it is just a pragmatic decision, on the facts of this individual case, but it muddies waters which were already far from pellucid.

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A word in your shell-like

Posted on February 6, 2014 by suesspiciousminds

Appeals, adoption, writing a cheque for costs and ‘informal discussions’

 Re C (A Child) 2014

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html

 It is no longer any great surprise when the Court of Appeal overturn a Placement Order, but just when I was getting jaded with this new spirit, along comes something to raise an eyebrow. In this one, the Court of Appeal overturned the Placement Order AND made an order for costs, in the sum of £22,000 against the LA.

 It also raises a couple of important issues of principle.

 The first is the need for a Judge to take care on an appeal – in this case, the whole thing started with a DJ refusing a placement order and the Local Authority appealing it to Keehan J.

 Keehan J found all five grounds of their appeal met, granted the appeal (fine) but then went on to make the Placement Order.

 As the Court of Appeal pointed out, Keehan J therefore made a Placement Order whilst only seeing the documents in the appeal bundle (which were of course very limited) and had not seen all of the documents that would be necessary to properly consider whether or not a Placement Order was the right order.

 It is quite obvious that Keehan J was concerned at the delay in planning for S’s future care needs, which delay is statutorily recognised as inimical to the welfare of the child (Children Act 1989, s 1(2)). Unfortunately, his understandable desire to move the matter forward appears to have blinded him to the significantly defective appeal bundle created and provided by the appellant which actually rendered him incapable of proceeding with the hearing on the notice of appeal filed, let alone providing the necessary evidence to support the making of a placement order. Put shortly, there were no transcripts of evidence and some of the documents before the district judge had been removed from the bundle….

 

There was an obvious lacuna in the materials presented to Keehan J in his appellate capacity to dispose of the appeal, still less to subrogate his own assessment of the facts in making a placement order. (See paragraph 8 above). I know that he would now only too readily acknowledge that his expressed reasoning in deciding that it was right to do so is insufficient and does not comply with the subsequently reported Re B-S (CHILDREN) 2013, EWCA Civ 1146.

 

 The Court of Appeal raise an interesting point, which may well come back to bite them, about transcripts of evidence rather than just the judgment. I happen to agree with them, but it is still something of a hostage to fortune.

Keehan J’s judgment was that the district judge “misconstrue[d] the evidence of Dr Bourne”, “was wrong to conclude that [an option] was viable or available…because the social worker gave evidence to him…”; reached “a conclusion which…he was [not] entitled to reach on the totality of the evidence before him”; and, that in relation to the care plan “was plainly wrong to come to that judgment and assessment”. He concluded that “The care plan of the local authority was entirely clear”. In my judgment, these findings and conclusions simply cannot subsist in the absence of a critical appraisal of all the evidence that was before the district judge (rather than relying on such statements as he had and the summary within the district judge’s judgment. Oral evidence will necessarily colour the picture otherwise presented by the statements and reports prepared before hearing. As is obvious from the judgments of District Judge Simmonds, that is precisely what happened in this case.

 

 

  1. In challenging Counsel for the Respondent local authority as to the absence of any transcript of evidence before Keehan J when hearing the appeal, her response clearly reflected the position taken by the local authority in the first appeal. That is, that transcripts were unnecessary since the district judge had specifically summarised the oral evidence as was obviously relevant to the judgment.
  1. This submission reflects an inability to recognise the failures of the local authority in the first appeal process which I would otherwise have hoped may have occurred to its legal advisers after reflection upon the contents of the present appellant’s notice and recourse to notes of evidence. It also flies in the face of paragraph 9 of District Judge Simmonds’ first judgment, vis:

“The fact that I do not mention something in this judgment does not mean that I have not fully considered it, but it is impossible to set out in this judgment everything that I have heard and read. My analysis of the evidence and findings, although made after each witness, are on the basis of hearing and reading the entire evidence and analysing the evidence in its totality.”

  1. This observation is entirely consistent with the well established principle derived from the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1372:

“The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1 , 45:

The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

  1. Over time, inevitably and regrettably, this conspicuously articulated wisdom is diminished by familiarity and may often, as in Keehan J’s judgment, become eroded by a concisely expressed but imprecise phrase. Lord Wilson’s judgment, endorsed in this respect by Lord Neuberger in RE B (A CHILD) (CARE PROCEEDINGS:THRESHOLD CRITERIA) above is a potent reminder of the need for all appellate courts to do more than pay lip service to the doctrine. At paragraph 42, after quoting Lord Hoffmann in Piglowska he said:

“Lord Hoffmann’s remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just “is this true?” or “is this sincere?” but “what does this evidence tell me about any future parenting of the child by this witness?” and, in a public law case, when always hoping to be able to answer his question negatively, to ask “are the local authority’s concerns about the future parenting of the child by this witness justified?” The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child. In In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258 , Lord Nicholls said:

“16 …There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.……Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge’s decision.”

 

 

Is that authority for “in an appeal, a transcript of the entireity of the evidence should be obtained?”    – well, not quite, but I would certainly say that attention should be paid as to whether it should be obtained, and advocates be prepared to defend their decision about it either way. (Frankly, I would cover my back and include within the appeal notice a position as to whether the oral evidence given is intrinsic to the appeal and the Court is invited to direct whether a transcript be obtained)

 

A major issue in the case was whether in the original hearing, the oral evidence developed to a point where an alternative to adoption (namely the child continuing to be fostered by the existing foster carers) emerged as a credible alternate plan. That plan was the one that the District Judge approved – hence him making a Care Order but no Placement Order. At the appeal before Keehan J (who of course saw the written evidence and submissions that this was not an option on the table) what appeared to be the case was that the DJ had refused the LA plan and tried to foist upon them a plan that did not in truth exist as an option, which would of course have been wrong in law.  The Court of Appeal, having seen the transcripts of the oral evidence, felt that the option that the DJ selected was in fact an option open to him based on the evidence, and that thus not only was Keehan J wrong in granting the appeal but the LA had been wrong in issuing it.

An interesting aspect of the case was the Court of Appeal’s take on the ‘informal discussions’ that took place between counsel for the LA and the original District Judge. There is obviously a fine line between the duty to raise points of clarifications before an appeal and back-door pressure, and the Court of Appeal felt that this was wrong side of the line territory.

  1. Counsel for the local authority e-mailed the district judge timed at 3.33 am on 25 February seeking to “clear misunderstandings” as to the thrust of her closing submissions which had apparently not been accepted. The district judge responded at 9.07 in short order restating the pertinent bases of the decision reached and indicating that the order would follow. Remarkably, and with great temerity in my view, Counsel then responded “with the greatest of respect, I do not agree with your analysis”. Having re-iterated shortly the basis of his decision the district judge quite properly made clear that he was “not prepared and [would] not deal with this matter in e-mail correspondence.”
  1. Whilst other advocates were copied into the second e-mail and the first e-mails disclosed to them subsequently, apparently have made no complaint and may well regard it to be orthodox procedure, I regard this to be an entirely inappropriate, unacceptable and unsatisfactory practice. Not only was this an unwarranted ex parte approach by unconventional medium but it is a practice that lends itself to accusations of taint, bias, closed door justice and “stitch up” in the absence of an adequate and reliable method of recording what transpired. In the circumstances, the district judge was extraordinarily restrained in his responses.…

And

I agree with the reasons given by Macur LJ for allowing this appeal and I agree with the order proposed. I would particularly like to associate myself with the remarks that Macur LJ has made at paragraphs 11 and 16 of her judgment. The attempt to get the District Judge to change his judgment and order after the he had delivered his judgment was quite unjustified and inappropriate. Counsel should know better than to attempt such an inappropriate exercise, even if the client urges it. (I do not say that happened in this case; I do not know).

 

 

And

  1. I agree with both judgments. Having seen the judgments in draft, Ms van der Leij has expressed concern about the comments at paragraphs 10-11 of Macur LJ and paragraph 36 of Aikens LJ dealing with the e-mail exchanges subsequent to the hearing. She observes that “it is by no means unusual for practitioners in the Principal Registry to e mail district judges directly seeking clarification of matters raised in a hearing”. It is one thing, if invited, to make submissions in relation to the terms of an order provided that every communication is copied to every party; it is another to express dissent and seek to engage in further argument. If that is not unusual, it is important that the problems which it generates should be recognised and that the practice should cease. First, it suggests (even if it is not the case) that advocates can go behind the scenes to resolve issues in favour of their clients and, as Macur LJ observes, will give rise to allegations of ‘stitch up’. Secondly, it will encourage litigants in person (who do not have the same understanding of the law or practice) to adopt a similar approach thereby disrupting the finality of the judgment of the court and generating continued uncertainty.

I completely agree with all of this – it is hard to know what was going on here, but the best way to deal with this sort of thing is transparently, where everyone (including and particularly the parents) sees exactly what is being said to the Judge and has an opportunity to comment.

 On to costs.

The Court of Appeal point out, with a degree of acidity, that if the parents had been legally represented at the first appeal, to the circuit judge, it would have emerged that the oral evidence had been markedly different to the papers that Keehan J had seen and that the DJ had been within his rights to view that oral evidence as being that an alternative plan than adoption – namely long term fostering with the existing foster carers, was not only an option that he could chose, but one that he should.

They point out that in saving a very small amount of costs in legal aid for that hearing, substantially greater costs, and delay for the child have been incurred because that appeal itself had to be appealed.

The fact that the parents were faced with an appeal before Keehan J without any professional representation because their legal aid had been withdrawn must have been a factor which unfortunately led the judge to be persuaded to act as he did, despite the fundamental procedural failure of the respondents’ lawyers. This was, of course, their failure to produce on appeal the transcripts of the very oral evidence which the appellant alleged that the first instance judge had misconstrued/misunderstood. As Macur LJ has commented, if the parents had been represented by competent counsel this failure would doubtless have been pointed out and the appeal may never have seen the light of day. As it is, further public expense has been incurred because of the need for a further appeal to this court. What might have been saved in legal aid fund costs has been lost by incurring public expense on another (but related) part of the public purse.

They did refute the parents claim that because they had not been represented at the original appeal their article 6 rights had been breached – i.e this would not be a ground for appeal in and of itself, although it provided context as to why the original appeal had gone awry and needed to be appealed

 

 The fact that parents comprise the vastly increased number of litigants in person which appear before the courts in child public law cases since they do not qualify for non means tested legal aid is all too apparent and unavoidable as a consequence of the present regime. As here, non represented parents will often be ranged against legally qualified advocates opposing them. They have access to justice in accordance with their “Article 6 rights” but are often daunted by the process and feel understandably outgunned. In itself, this fact does not found a meritorious ground of appeal but necessarily it comprises a context for the other complaints that are raised in this application. I have every reason to expect that, if they had been legally represented by a competent advocate, this appeal may never have seen the light of day.

 

 

An application for costs was made. As readers will know, costs in care proceedings are fairly unusual, although possible,

  1. The mother is now legally aided. However, during the preparation for this appeal it appears that there were periods when it was withdrawn. In any event, the mother apparently is at risk of future recoupment from the Legal Aid Agency. She applies for costs of the appeal. Written submissions and revised cost schedules have been submitted.
  1. The local authority relies on Re T (Costs: Care Proceedings: Serious allegation not proved) [2012] UKSC 36 to resist the application. It argues that it has not adopted an unreasonable stance or been guilty of reprehensible behaviour. For the reasons above I believe that the position that it has taken to have been unreasonable. In the alternative, it cites London Borough of Sutton v Davis (Costs) (No 2) [1994] 1 WLR 1317 as authority to the effect that this court should not make an assessment but should order costs to be paid in a sum assessed by the director of the LAA. This proposition is based upon the obiter dicta remarks of Wilson J, as he then was. He urged reform of the then current legal aid regulations. They do not endure in the light of the 2010 Standard Civil Contract entered into between the mother’s solicitors and the Legal Aid Agency, section 1, General Provisions 1.50B of which provides: “This paragraph represents our authority pursuant to section 28(2)(b) of the Act, for you to receive payment from another party….and to recover those costs at rates in excess of those provided for in this Contract or any other contract with us. This court must address the claim for costs with a view to the context in which it arises. The director of the LAA is not in a position to assess whether the same have been unreasonably incurred.
  1. The necessity for this appeal emanates from the local authority’s failures to address the issues correctly in front of Keehan J. I would order them to pay the costs of the mother claimed in the sum of £22,756.68

The Court of Appeal don’t formally say that the informal approaches by counsel to the DJ played any part in this decision, but they hardly take pains to point out that they played no part. Those might have been very expensive emails.

 

[I am grateful to one of my readers for politely, judiciously and correctly letting me know that Keehan J is of course not a Circuit Judge, as I had been wrongly designating him – I have now edited out those incorrect references. ]

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Nothing else will do in the USA

Posted on February 3, 2014 by suesspiciousminds

Readers may be aware that in care proceedings, if it is not possible for a child to live with a parent then a family member is the next best thing. They may also be aware that the Supreme Court and Court of Appeal have been saying in 2013 that in order for a plan of adoption to be approved that the Court must be satisfied that “nothing else will do”

 You might not be aware, unless you happen to have done such a case, that where a family member lives in America, that the only lawful way to get the child INTO America is for the family member to adopt the child. That’s because of the way that the US authorities deal with immigration and visas and such.

 That poses something of a tension between “I want to place with Auntie Beryl, who lives in America” and “adoption is the last resort” because in this situation, adoption is actually the only legal route one can take to get the child placed with Auntie Beryl. 

 

But at the same time, you end up with a substantially more draconian order, one that ends the legal relationship between the birth parents and the child, than you would have countenanced had Auntie Beryl lived in Stoke instead of Tallahassee.

Should you find yourself in that tricky spot, this piece of caselaw will be helpful

 

RO v A Local Authority & Others 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/97.html

 

Exactly that situation arose, and where a Court would normally be looking to place the child with Auntie Beryl under a residence order or Special Guardianship Order, here they have to do so under a regime of adoption, which is now considerably more difficult than it was pre June 2013, when the caselaw shifted radically.

 The Judge approved the plan of placement with the relatives who were living in America, and outlined very carefully the reasons that this could only be done under the auspices of adoption, and thus why the making of a Placement Order was justified. It would stand as a good model for any one seeking to persuade a Court to place with relatives in the USA in future.

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Brussels Sprouts II – this time it’s jurisdictional

Posted on January 8, 2014 by suesspiciousminds

There haven’t been any posts since Christmas, because there haven’t been any judgments published. That’s sort of the way that a topical law blog works – when the Courts go quiet, I go a bit quiet too.

This one from the High Court, Mostyn J, is not what one could describe as interesting (Brussels II cases are NEVER interesting) but in the context of the biggest child protection story of last year, it might be politically important.  (I was hoping someone else would write it up first, as I had my fill of BRII with all of the Slovak cases last year)

 

Re D (A child) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4078.html

Brussels II is basically legal shorthand for meaning the mechanism by which the Court in one EU state says to another “Actually, you know that case you’re dealing with – well, we think it ought to come over to us and we’ll deal with it”. It is also important to note that where a BRII application is made, the rules are that it must be determined within six weeks.

You may remember a lot of discussion in the media about the C-section case as to why our courts were dealing with it at all – the answer is fairly simple – the child was physically here, an English Court was presented with an application, and no Italian Court made an application under Brussels II for the case to be transferred lock stock and barrel to them, nor did anyone else.

 

Anyway, this one involved a family who were in the UK but had originated from the Czech Republic  – care proceedings were initiated here, and eventually a plan of adoption was put forward.  The background is set out here

    1. The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.

 

  1. In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic.

 

The Czech authorities became involved, and put forward a plan whereby the mother and the child would live in the Czech Republic together, with support. The mother also sought to transfer the proceedings to the Czech Republic. (It would be fair to say that the Czech Republic were fairly lukewarm in their enthusiasm for that)

For the child therefore, the jurisdictional issue was not a merely semantic one – the decision as to whether this was properly an English case or a Czech one would determine whether the child would be adopted or live with mother.  Both sides indicated that they would seek leave to appeal if the decision went against them.

    1. It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.

 

    1. In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.

 

  1. But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.

Mostyn J decided that on the facts of the case the case ought to be transferred to the Czech Republic IF AND ONLY IF, having been told of that decision, the Czech Courts agreed to do so within six weeks, otherwise it would remain in the UK.

 

The important things about this case are :-

 

1. For the first time I am aware of, the application under BRII was made not by the foreign country or court, but by a party to the UK proceedings (Mostyn J specifically concludes that this is acceptable under BRII and that the application can originate from inside the proceedings – thus for the first time there’s a mechanism by which a party in the UK proceedings can try to PUSH the proceedings to another jurisdiction, rather than having to rely on that country seeking to PULL them). In the words of Ron Burgundy – that’s kind of a big deal.

 

2. Mostyn J highlights that in the Czech Republic there is no non-consensual (forced) adoption, and the tension therefore with the Supreme Court authority in Re B that a placement order should only be made if nothing else will do.

3. He also highlights that it is not for English Courts to critique foreign systems or indeed the actions of foreign social workers.

4. The case is obviously going to be appealed, and that will be an opportunity for the Court of Appeal to give some guidance on this issue, which will crop up more and more frequently, of how to deal with cases where one or both parents is living or plans to live in another EU country by the time of the final hearing.

In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.

 

So, is being from another EU country a get out of jail free card? Well, perhaps, perhaps not

 

    1. The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child’s homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.

 

  1. I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request.

 

Mostyn J certainly felt that where there was the potential for a BRII application, the Judge ought to discuss that with counsel, and if so to transfer the case to the High Court.  Although BRII is dry and dusty and not a lot of fun, this decision – and whatever the Court of Appeal do with it, are going to be important for any child protection case where a parent is from another EU Country  (purely anecdotally, for my own caseload over the last five years, that’s about 15-20% of them).  It will be important that the advocates understand what would be involved in such an application and what the tests and arguments are, and important for those advising parents to know that this is an option which might be available.  For some parents, moving back to their birth country might not be something they want to do, but it is certainly a powerful tool particularly where that birth country takes a different view about non-consensual adoption.

 

 

 

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