Category Archives: adoption

Placement orders v Court of Appeal part 8

Posted on October 23, 2013 by suesspiciousminds

 

Re F (A child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1277.html

Another Placement Order overturned on appeal (not sent back for re-hearing this time). Although at first glance, this might look like something new, or a development of the post Re B changes to adoption law, it actually turns out to be revisiting existing law from 2008 and determining which of two categories the children in question fell into.

 

The Court of Appeal decided that this case had significant parallels with Re T (Children : Placement Order) 2008   :- sadly the links to Re T in the Baiili piece take you instead to the worlds of high finance, so am grateful to Jerry Lonsdale for this link

http://www.familylawweek.co.uk/site.aspx?i=ed1101   .

 

In effect, in Re T, although the original Court had decided that the best placement for the children long-term would be adoption, there were considerable uncertainties about whether such a placement was actually in the best interests of the child because there were uncertainties about that issue – there was some specialist intervention required first and that they were not suitable for an adoptive placement at that stage; and it could not be certain that they would ever actually be ‘ready’

The Court of Appeal overturned the Placement Order in Re T

    1. Hughes LJ gave short shrift to the idea that there should be no placement order if it was anticipated that there would be real difficulty in placing the child. He accepted that a placement order could be made even if there was a real possibility that an adoptive placement would not be found at all. He said that “mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order” (§17) and that:

 

“a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not.”

    1. The key passage of Hughes LJ’s judgment for our purposes is, in my view, §18. There he said:

 

“But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys’ best interests, because their needs could better be met by the kind of substitute family found only in long term fostering.”

  1. Accordingly, the court in Re T found that it had been premature of the judge to find that adoption was in the boys’ best interests and to make the placement order. Amongst the reasons that the trial judge had given for making the placement orders was that this would give the local authority the greatest possible certainty and flexibility for the future, enabling them to place the children at short notice (see §13) but those potential benefits were not sufficient to alter the outcome, as Hughes LJ made clear in §19.

 

In this particular case, the arguments before the Court of Appeal were whether the case before them had sufficient parallels with Re T to make it correct to overturn the Placement Order (as the parents argued) or whether the two cases were distinguishable on their facts i.e that it was a Re P case, which justified a dual approach of searching for an adoptive placement even though one could not be sure that one would be found and if not, the plan would become long-term fostering.  (You may recall from recent blogs there being some issue about whether Re P and Re B-S are incompatible with regard to that dual planning approach)

 

The critical difference is this

1. If what you are saying is that  it is too early to say that adoption is in the child’s best interests  (if so, Re T applies and a Placement Order ought not to be made)

2.On the other hand if what you are saying is that  an adoptive placement might not be found for this particular child because of the characteristics or features of the child, but that it is worth trying to find one (If so, it is a Re P case, and a Placement Order could be made if the other statutory requirements were made out)

 

There is a helpful clarification from the Court of Appeal in N S-H v Kingston upon Hull 2008

http://www.bailii.org/ew/cases/EWCA/Civ/2008/493.html

 

“In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all.”

 

So, if the child is NOT YET ready to be adopted and there are some intermediate steps, a Placement Order should not be made, and the LA should carry out that work, and make an application for a Placement Order if the work places the child in that position of being ready to be adopted.   That does lead to the potential gray area that if the preparatory work is going to take about the same time as the search for an adoptive placement, following this line of authority would mean the child being ready for adoption, but having to wait for the litigation to make the order.

 

Back to Re F  (apologies for the amount of law involved in that, this is rather a tricky situation)

    1. We can see from the justices’ reasons that Mr Cranfield, who has appeared for F at all stages of this case, submitted to the justices that it would be premature to make a placement order “because of the uncertainty surrounding the therapy [that L needed] and its duration and outcome”. He cited Re T and NS-H v Kingston-upon-Hull City Council and MC to them but they felt that the present case differed from those cases “in that the Local Authority have a clear, long term plan for adoption which includes the provision for adoptive parents to be involved in L’s ongoing therapy”.

 

    1. In their resumé of the evidence, the justices said that all the professionals involved in L’s care agreed that adoption would give her the best opportunity of security and permanence, that the adopters would need to be highly skilled, that it may therefore take some time to identify appropriate adopters and that delay needs to be minimised in L’s best interests. They also recorded that the guardian had agreed that LA needed to start the search for adopters as soon as possible so that they could be drawn into the therapeutic process with L. They concluded that it was in L’s best interests to make a placement order so as to give LA the earliest opportunity to identify an appropriate adoptive family for L.

 

    1. Absent from the justices’ resumé, however, was any reference to the evidence of the psychologist that it would not be known until some way into the therapy whether adoption would ultimately be in L’s best interests.

 

    1. Dealing with the appeal from the justices, Judge Orrell carefully set out the evidence that the psychologist had given, including that the programme of therapeutic parenting that L needed was designed to strengthen the bond between her and her carer which “inevitably leads to serious questions being raised as to whether it would be in L’s interests to be moved and indeed, if she would cope with such and settle in a new placement”, that “a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers”, that “it is difficult to make predictions or recommendations at this point”, and that one “can’t really know until about 12 months elapse whether the child can be moved or placed elsewhere”.

 

    1. The judge commented that it was quite difficult to ascertain the burden of the evidence before the justices and he reminded himself of the advantage that the trial court has over the appeal court in that it has seen the witnesses. He distilled his own summary of the psychologist’s recommendations. It is notable that it makes no reference to her evidence, which he had cited earlier in his judgment, that it would not be possible to say until some way into L’s therapy whether a move to adopters would actually be in her best interests.

 

    1. At §33, the judge correctly isolated the essential issue in the case as being:

 

“Whether, on the one hand, the Justices were entitled to say that, at the date of the hearing, adoption was in L’s best interests so that she ought to be adopted, notwithstanding that important work had to be done with her prior to placement and after placement and that finding a suitable adopter might be very difficult and might be impossible or, whether on the other hand, important work had to be done with L at the end of which (and only at the end of which) it would be known whether an adoption was going to meet her needs or whether long-term foster care with skilled carers would meet her needs better.”

 

One can see that the possibility that this was a Re T case, in which it was too early to say that adoption was in the child’s best interests, was a live one. The County Court (having itself heard the case on appeal from the Magistrates) decided that this was a case where the Court was satisfied that adoption was in the child’s interests and a Placement Order was made (i.e that it was a Re P case, not a Re T case)

 

The Court of Appeal disagreed with that analysis (and if one accepts the psychologist’s evidence, one is driven to the conclusion that this is indeed a Re T case)

 

    1. Despite the resourceful attempts of the LA and the guardian to persuade us that this case can be distinguished from Re T, I am afraid that I cannot see any proper distinction. However much agreement there was that adoption would be the most secure outcome for L if it was ultimately possible to place her, the clear evidence of the psychologist was that it would not be possible to tell whether adoption would in fact be the right course for her until some way into her therapy. The guardian was saying something not dissimilar in the passage of her evidence that I have set out above. Of course, when the question does come to be addressed when the appropriate point in L’s therapy has been reached, the answer is likely to depend not only on the progress L has made but also on what adopters are available. However, that does not detract from the bald fact that when the justices heard this case, the evidence was not such as to establish that L’s welfare throughout her life required adoption. This was not a Re P case because the uncertainty was not about (or not only about) whether adopters would be found, it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option.

 

    1. I have, of course, given careful consideration to the advantage that the justices had in that they heard the witnesses give evidence. However, they appear to have failed to take account of the manifest uncertainty over what would turn out to be right for L, as did the judge as can be seen from his omission of this element of the psychologist’s evidence from his summary. This uncertainty was central to the determination of the placement application. On the facts of this case, in my view it was wrong to have granted the placement order.

 

    1. I acknowledge that there are disadvantages in LA not having a placement order. It will almost inevitably be more difficult for them to encourage people to put themselves forward as prospective adopters for L and we were told that they will not even be able to find out what resources adoption agencies have available. However, the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Secondly, granting a placement order in circumstances such as those which prevail in this case would also have undesirable consequences as Mr Cranfield pointed out. When the time comes to determine whether or not adoption is the best plan for L, there may be room for considerable debate but there will be no obvious forum for that. LA would have no obligation and, subject to the possibility of applying for the revocation of the placement order, possibly no power to return the matter to court. The guardian’s role would have ended with the making of the placement order. As for the parents, in order to play a part in the decision, they would probably have to seek leave to apply for the revocation of the placement order. To obtain this, they would need to establish a change of circumstances and I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset.

 

    1. It was for these reasons that I reached the clear view that a placement order should not have been made and that the appeal should therefore be allowed.

 

  1. It follows that the placement order made by the justices and affirmed by Judge Orrell must be discharged. We considered whether the appropriate course would be to remit the case to first instance for the application to be reheard. However, until L has made some progress in therapy, it seemed likely that LA would remain unable to establish their case for a placement order.

 

For the first time, one of the many elephants in the room with the Court of Appeal’s rapidly developing jurisprudence on adoption was dealt with – saying that the best option was for the LA to apply for a Placement Order in due course if the child was ready for adoption, the Court of Appeal noted

I was dismayed to learn that public funding may not be available to the parents to contest such an application. I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child. 

 

That at least, is a sentiment I can wholeheartedly agree with, and one which possibly opens the door for a brave soul to drop hints to the Legal Aid Agency that a refusal of funding for a parent fighting adoption outside of care proceedings would be Wednesbury unreasonable.

Although this case falls slap bang in the middle of the biggest judicial recalibration on adoption of my lifetime, I think that it probably would have been decided this way even before Baroness Hale’s speech in Re B put the fear of God into the Court of Appeal.  It is more of a reminder / determination on the facts whether this was a Re T, or Re P case.

That reminder may lead to some curious arguments and submissions that “such and such a child is too damaged to be placed for adoption without preparatory work”.   It is not that uncommon to hear for example, that before the child could be placed for adoption there would need to be age-appropriate discussions and groundwork for the child about what that would mean, or that the reduction in the level of contact would be a necessary precursor. Does that mean that the child is not, at the time of making the order, “ready”?

So, how ready is ready? Does the child have to be ‘ready’ for adoption very shortly after the Placement Order is made? (i.e if a match were made in the next fortnight?)  Or does the child have to be ‘ready’ within the realistic timescales for identifying a suitable placement? Or something else?

 

 

 

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It isn’t Re JB, it is Re C

Posted on October 21, 2013 by suesspiciousminds

The Court of Appeal case I talked about at the weekend, which decided that the original Judge had not been wrong in making a Placement Order (and thus showing that the Court of Appeal aren’t just going to say “no” to every single Placement Order) is now out on Bailli and is Re C (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1257.html

The predominant challenge to the Placement Order, both at trial and in the appeal came from the maternal grandmother, EB, who had sought a Special Guardianship Order instead. She had been assessed by the LA unsuccessfully but was supported by an Independent Social Worker.

  • The judge held ([70]) that there were “a number of very important points to be made in [EB’s] favour”. She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.
  • However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB’s suitability. These were:

    i) He doubted ([72]) EB’s ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be “confusing” for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

    ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB’s ability to manage.

    iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

    iv) He was concerned about EB’s relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG’s concern about a recent incident when J was taken to EB’s home and appeared to be upset.

    v) Finally the Judge pointed to what he described as a “lesser concern”. He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as “not a positive attitude” to the father. The judge later said that his decision was primarily based on the first four of the concerns.

     

  • Having considered these positive and negative factors in relation to EB, the judge went on to reject three matters which had been raised in relation to EB:

    i) A suggested lack of emotional warmth from EB towards J;

    ii) A suggestion that her motivation for seeking guardianship arose from feelings of guilt

    iii) An incident involving EB’s use of a knife in 2007 in a wholly different situation.

     

  • Having considered these matters the judge expressed his conclusions about EB at [80] as follows:

    “What I have to do is to weigh up all the evidence and points that I have mentioned and look at what is in [J’s] best interest and decide what I consider to be reflective of his welfare. The conclusion I have come to in relation to [EB] is that the concerns significantly outweigh the advantages. I agree with the guardian that [J] does need a settled and secure home now. I am not satisfied that it would be attainable with [EB]. I agree with the local authority and the guardian as to [J’s] welfare and what is the best way forward in relation to that and I disagree with the independent social worker Gretchen Precey

The Court acknowledged that the Judge had not carried out the sort of Re B-S or Re G style balancing exercise, holistically comparing the relative merits of each of the options against one another, rather deciding the case in a linear fashion by dispensing with the mother, then grandmother and thus leaving adoption as the only option ‘left on the table’ .   We know that the Court of Appeal have recently determined that this is wrong and that many (I count seven) Placement Orders have been refused or sent back for re-hearing on that basis.

The Court identify that the structure of the judgment is badly flawed

  • I have found this a troubling case. As a matter of structure the judge has made it difficult for readers of the judgment to see that he has in fact conducted a balancing exercise in order to make the crucial choice between a home with EB or adoption by strangers. The judgment is ‘linear’ in form, despite the fact that, at paragraph 63, the judge identifies

    ‘one alternative here is the local authority’s care plan which is clearly in this case a realistic and achievable plan but the question is whether it is in J’s best interest. To decide that I have to look at the alternatives.’

    What then follows is the section of the judgment (summarised at paragraph s 8 to 14 above) in which the judge looks at each of the family members, including EB, before concluding that she is unable to offer the stable and settled home that J needs. That sequence is not, on its face, a consideration of what was the true alternative choice before the court, namely one between adoption or placement with EB.

     

  • Further, where the court is seized of both an application for a care order and an application for a placement for adoption order, I would question the wisdom, when making a care order in the middle of the process of evaluating the ultimate question of whether or not a placement for adoption order is to be made, of ‘approving a care plan for adoption’ by reference only to the CA 1989, s 1 welfare provisions. In common with the practice of many family judges, that was the course taken by the judge in the present case. It is, however, a practice which may inadvertently lead the court away from engaging with a proper, holistic evaluation of the central welfare question and, where placement for adoption is an issue, doing so within the structure of ACA 2002, s 1 rather than CA 1989, s 1. Any judge, who is aware that (either at the current hearing or at a hearing shortly thereafter) he or she is going to be considering whether or not to make a placement for adoption order, would be wise only to approve a care plan for adoption where such a plan seems likely to meet the welfare requirements of ACA 2002, s1 and s 52.
  • By way of example, it is a consequence of the linear structure in the present judgment that EB is ruled out at a stage where the judge is solely considering the welfare checklist in CA 1989, s 1(3). He then goes on to make the care order and to approve the care plan for adoption (paragraph 85). It is only after that point that the judge, for the first time, makes reference to ACA 2002, s 1(2) and to the enhanced welfare checklist in ACA 2002, s 1(4) with its focus upon the whole life nature of an adoption decision.
  • The CA 1989 welfare checklist must, by reason of CA 1989, s 1(4)(b), be used when the court is considering making a care order under s 31. A linear judgment, which unnecessarily compartmentalises the decision making into discrete and separate stages (‘care order’ and only then ‘adoption’), with the 1989 Act provisions alone being used to approve a plan for adoption, in some cases may prevent the evaluation of what is ultimately the one issue in the case, the choice between family placement or adoption, as a whole and for that evaluation to be undertaken with the tailor-made, adoption focussed, welfare checklist in ACA 2002, s 1 at the forefront of the judicial mind

However, it seemed that the Court of Appeal did not feel that the decision itself was the wrong one, and thus find themselves between a rock and a hard place. On the one hand, the principles of Re B-S haven’t been adhered to, on the other, the final outcome appeared right to the Court of Appeal. Should they send it back for re-hearing because of procedural flaws, or take a pragmatic approach that despite those flaws the right decision was made?  (Arguably, how CAN the right decision have been made if the process was so flawed? )

The Court of Appeal thus had to do some rowing  (both in the debating sense of the word and the moving oars in a boat metaphor sense) to help retrieve the position.

  • In the present case, as I have described, the judge has made it difficult to see that he has in fact confronted the essential choice between a placement with EB or adoption, and done so in the context of ACA 2002, s 1. Despite the unhelpful structure of the judgment, however, I do consider that the judge did have the relevant long-term factors in mind:

    a) Having cited the four/five central adverse findings that he made against EB as a carer (see paragraph 13 above) his conclusion that a permanent, settled and secure home would not be attainable with her is justified and, in my view, not susceptible to being overturned on appeal;

    b) The factors relied upon to rule EB out are long-term in nature and, I am satisfied, that despite the use of the CA 1989, s 1 checklist at that stage of the judgment, the same findings would have led to the same decision had they been evaluated under ACA 2002, s 1;

    c) The judge was plainly focussed on long-term, whole life planning and his decision that EB could not provide a sufficiently stable and settled home was made in the context of there being only one other alternative, namely adoption;

    d) The judge clearly had the provisions of ACA 2002, s 1 and s 52 in his contemplation and paragraphs 90 and 91 (see paragraph 17 above) indicate that he had those factors in mind, he considered them to be important, but nevertheless he considered that J’s welfare required adoption. I should indicate that for some reason the Note of Judgment that was before me when I granted permission to appeal did not contain any reference to the content of these two key paragraphs;

    e) In terms of proportionality, at paragraph 84 (see paragraph 16 above) the judge indicated that he was fully aware that it is hard to imagine a greater degree of interference in the right to family life of J and his family, but, for the reasons that he had given, namely his adverse conclusions as to EB’s ability to provide a long-term secure home, he considered that the course chosen was justified and proportionate as being in the child’s best interests.

  • In the circumstances, and despite the critical observations that I have felt driven to make as to the structure of the judgment, I am satisfied that the judge did engage sufficiently with the core, long-term welfare decision in this case and, despite understanding all that EB undoubtedly has to offer J, I consider that the adverse findings that the judge made against her must stand. In the light of those findings the judge’s decision was proportionate and, in the context of J’s welfare, is not ‘wrong’. As a result of those conclusions, I would dismiss this appeal.

I see a future of Local Authorities waving this decision and parents waving Re B-S.  The tranche of post Re B-S appeals is going to be vital in understanding whether the Court of Appeal requires perfection in terms of the holistic balancing exercise, or whether as here if the Court of Appeal can look at the judgment and deduce that a holisitic exercise would have achieved the same outcome the Judge was not wrong.

I am slightly surprised that the Court of Appeal didn’t lay down a marker that this case was considered exceptional because not all of the key judgments had been available to the trial judge at the time of making his decision (although that didn’t prevent the other seven cases) and that for all cases where judgment was given post Re B-S, the expectation would be that any judgment that did not follow those principles would be likely to be wrong. Despite my surprise, the judgment DOES NOT DO that, and is thus arguably authority for the Court of Appeal looking beyond the mere structure of the judgment and into the facts of the case to see whether the decision itself appeared ‘wrong’

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No wonder you’re late – why this watch is exactly two days slow

Posted on October 19, 2013 by suesspiciousminds

Yet more quest for perfection from the President. Mark this well.

 

Re W (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.

 

    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.

 

    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.

 

    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

 

    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.

 

  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

 

Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?

 

Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?

 

    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.

 

    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.

 

    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):

 

“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.

 

    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.

 

  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.

 

The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.

 

So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

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I’ll see your B-S and raise you JB

Posted on October 19, 2013 by suesspiciousminds

Sadly, Re JB (Children) 2013 isn’t up on Baiili yet, but it will be very important for anyone who is doing a case involving adoption.  It is Court of Appeal, and post-dates RE B-S – in one of those quirks, I think that when it was being orally argued, Re B-S was not out, but it was out and taken into account in the judgment.

You may remember some of these key points from Re B-S

1. Vital to have in mind the striking language used by the Supreme Court (for which read Baroness Hale) about proportionality in Re B

2. Linear approach (as in my last post) is out, and the Court have to look at all the options holistically

3. Judgment has to consider all of the advantages and disadvantages of each placement option for the child, with rigour

4. Can’t rule out the parents simply because that option requires more support than the LA wish to provide.

 

And we know that seven cases (so far) have had Placement Orders overturned and sent back for re-hearing for not following those principles, even though many of them weren’t in existance at the time the Court who made the order decided the case.

 

Well, in Re JB, the Court of Appeal identify that all of those features are lacking in the judgment. They also add in that there is a relative, rejected by the LA, effectively because the support that would be required would be too high.

What you would assume, therefore, is that the Placement Order would be overturned, and the case sent back for re-hearing, perhaps with some additional judicial guidance about prospective kinship carers and support and what Courts have to do when faced with a kinship carer who still seeks to care even when faced with a negative report from the LA.

No, the Placement Order stood.

In the interests of fairness, it will only be when the judgment goes up and I can draw out and quote how that decision was reached that we can hope to put it into context, but in a nutshell, the Court of Appeal seemed to feel that if the Court HAD done those things they would have reached a decision of Placement Order and there was enough in the judgment to make the Court of Appeal consider that the Judge was not wrong.

How that helps anyone call an appeal’s prospects of success now is very hard; and how a Court at first instance is supposed to look at these two authorities (not so much on the analysis of options but the ‘support’ and ‘nothing else will do’ options) is beyond me.

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Hamfisted analogy time!

Posted on October 17, 2013 by suesspiciousminds

 

Hello, good evening, and welcome to this first episode of TV’s newest gameshow “You’re going to get bitten by an animal – for money!” (c)

The rules are simple, we have three doors – A, B and C.  You choose a door. Behind each door is an animal, and you are going to get bitten by it. Then I am going to give you some money.  You don’t know how much money, the only thing you know is that the most money is for picking Door A, then the next highest is Door B and the lowest amount is Door C.  Now, it might be that the difference between Door A’s money and Door C’s is Fifty thousand pounds, or it might be fifty pence. You just don’t know.

The only rule is, that I will tell you what is behind Door A – you decide whether to choose that door, or reject it. If you reject it, we move on to Door B. It’s too late then to go back to Door A. If you have rejected Door A, and Door B, then and only then do you move on to Door C.  And you have to go through Door C and get bitten by that animal.  Door C is the last resort.

 

Okay, here we go !  Behind Door A is…..   A rottweiler

Are you going to choose Door A, or reject it and move on to Door B?  You don’t know what’s behind Door B – it might be better, it might be worse… that’s the gamble.

 

Assuming you’ve rejected Door A, we go on to Door B.  And behind Door B is….  a chimpanzee.

Are you going to choose Door B, or move on to Door C? The last resort door.  It could be anything – it could be a tortoise, it could be a hamster, it could be a grizzly bear.

 

And this is an example of why the Court of Appeal (notably McFarlane LJ  in Re G, and the President in Re B-S) have concluded that the linear decision-making model is flawed.  If one accepts that the test for Placement Orders is that they should be the ‘last resort’  (this being extrapolated by the Court of Appeal and Wall LJ in Re P, and expanded to ‘nothing else will do’ now – and it is the law, until either the Supreme Court, ECHR or some legislation say otherwise),  then you can’t just reject Door A (parents) and then Door B (extended family) and saythat Door C is the right option for the child and the last resort, just because its the only thing left.  As McFarlane rightly says, if you are going to proceed in a linear fashion and rule out options because they have deficiencies  and then go with whatever is left, you’d end up with the potential for the decision to have been different had you STARTED with Door C.

If, for example, Door C is the grizzly bear, suddenly that rottweiler behind Door A doesn’t seem that bad. You might well have picked Door A, had you known what was behind all three doors from the start.

 

In this example, you also only get to look at the disadvantages – what sort of animal it is that’s going to bite you, and not the advantages – the cash that’s on offer for being bitten. You need to see not only what the Disadvantage of picking each door would be, but also what the Advantage might be.  And you see that laid out clearly, for the range of options before you start deciding which to pick, Only then can you try to make any sort of rational choice.

So, whilst the decision in Re B-S that the social work final evidence has to lay out what’s behind every door – advantages AND disadvantages for each option and robustly analyse each, is going to be a huge culture shift and a massive pain in the neck to prepare, it’s one that makes a degree of sense, when you think about the exercise that’s involved.    {There are quite a few other things in Re B-S I have an issue with, and I’ll come back to those, but this one feels right, although it is making my life difficult at present}

 

 

 

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“Dual-planning in final care plans– does it exist post Re B-S?”

Posted on October 14, 2013 by suesspiciousminds

Cases in the County Court don’t often make it onto Baiili law reports (though at some impending future time they all will), but this one is interesting and potentially important, not least because it identifies a conflict between two existing Court of Appeal authorities.

 Re D-R (Children) 2013

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/5.html

 His Honour Judge Bellamy dealt with the case (he being a Judge who occasionally sits in the High Court, and a very competent crafter of an analytical judgment)

 The case involved six children, Ian aged almost 8, David aged 5½, James aged 4, Sarah aged 3, Rachel aged 22 months and Peter aged 6 months (not the children’s real names). The local authority also applied for placement orders in respect of each of the five younger children.

 The parents accepted that they were not able to care for the children and that the threshold was crossed. No other family members were being put forward. The case, two months ago, would have been pretty simple. Placement Orders for the younger five children, Care Order and long-term fostering for Ian.  Most of the debate would have related to contact, and particularly sibling contact between Ian and his younger siblings.

 However, in our new landscape, two interesting questions emerged.

 

  1. As, in order to make a Placement Order, the Court must be satisfied that “nothing else will do”, what happens if the judicial analysis of the advantages and disadvantages of adoption v long-term fostering come down on the side of adoption being a better placement outcome for the child, but NOT to the point where long-term fostering could be dismissed as a potential option that on analysis “will not do” ?

 

  1. Does the fairly common care plan of “search for adoption placement for six months under a Placement Order, and if not successful search for long-term fostering”    (dual-planning, as endorsed by Wall LJ in Re P) stand up to Re B-S ?   If one is saying that ‘long-term fostering’ would do in six months, then how can at the same time one say that it is an option that will not do?

 

And tied into all that is what the hell “nothing else will do” means when the Court is considering all of the other options.  In order to say that “nothing else than adoption will do”  isn’t the Court in effect saying in relation to each of the other options that they “won’t do”   ? (rather than that adoption, taken in the round,  has advantages that outweigh the advantages of the other options for the permanent care of this child?)

 

If that is right, and it is certainly one reading of Re B-S, that in effect the Court of Appeal have determined that adoption is not an option available to the Court unless all of the other options are excluded on a careful comparison – adoption is off the table unless all other options are discounted

 

 then the fact that a Court might decide that it is by far and away the BEST option of the range available for this particular child counts for little or nothing. And where does that leave s1 of the Children Act 1989?  It seems as though a Judge might have to make an order that doesn’t feel like the one which is in accordance with the child’s best interests.

 

[My own take on that would be that it feels deeply uncomfortable for a Judge to decide that adoption is better for the child than long-term fostering and then have to go for long-term fostering IF you are looking at it in terms of the Judge choosing the ‘best option’,  but IF you flip that around and look at it in terms of the Judge choosing the ‘least worst’ option, it probably works  – perhaps I’ve just been re-reading too much Daniel Kahnemann this week]

 

Whilst it was easy to frame Re B-S as being a conflict between adoption and parents as the options, it may be that the harder tussles are between adoption and long-term fostering.  There are many arguments that can be deployed about why adoption for a particular child is better for that child than long-term fostering (and vice versa) but limited arguments that would allow long-term fostering to be discounted as an option that “will not do”

 

In this case, Re B-S had arrived in fairly close proximity to the hearing, and the Local Authority final evidence had not as a result contained the analysis of the options now required. The Judge considered an adjournment but instead decided that the analysis could be drawn out of oral evidence, cross-examination and submissions.

 On the first issue, of what happens where adoption looks preferable to long-term fostering, but it cannot be said that long-term fostering “will not do”

 I have underlined the critical passages

 99.      Before approving the local authority’s plan the court must consider the arguments for and against each option. I am indebted to Mr Tyler for his very thorough written submissions and not least for his attempt to evaluate the arguments for and against adoption by means of a balance-sheet approach.
{I have snipped the balance sheet exercise for pacing, but it is worth a look}

 
104. Mr Tyler submits that the balance ‘comes down clearly and by a wide margin in favour of seeking to attain for David the “gold standard” of a secure, adoptive placement’. I don’t accept that to be the case. Whilst I do not disagree with the factors Mr Tyler proposes should be weighed in the adoption balance, in my judgment the balance is at best even. The local authority’s acknowledgement of the importance to David of contact with his siblings (a factor which, in accordance with s.1(4)(f)(i) the court is bound to consider in evaluating David’s welfare interests), its acknowledgement that the need for sibling contact may well impede the search for an adoptive placement and the impact of David’s emotional difficulties all weigh heavily against the plus factors identified in support of adoption.


105. Although Mr Tyler identifies only two factors in support of fostering compared with six factors against, in my judgment the weight of the competing factors means that the balance is closer than appears. I am nonetheless prepared to accept that the weight of the factors which point against long-term foster care marginally outweigh the factors which point in favour.


106. In the light of that balancing exercise it is difficult to see how it could properly be said that nothing else but adoption will do, that no other course is possible in David’s interests, that there are overriding requirements pertaining to David’s welfare which make it clear that nothing but adoption will do. When one adds to that the real and significant doubts about the deliverability of the plan for adoption for David and when one also takes account of the provisions of s.1(6) of the 2002 Act, the outcome in my judgment is clear. The plan to engage in a time-limited search for an adoptive placement is not appropriate.


107. On the facts of this case I am not persuaded that adoption is the appropriate outcome for David. It is not the least interventionist option consistent with his needs. I shall, therefore, dismiss the application for a placement order and approve the local authority’s alternative care plan of long-term foster care.

 

On the dual-planning issue

 

88.      Given the ‘striking’ language used by the Supreme Court in Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children) what, if any, are the consequences for the type of care plans this local authority advances in respect of David and James which propose a time-limited search for an adoptive placement with long-term foster care the fallback position if an adoptive placement cannot be found? For the local authority, Mr Tyler submits that this issue has already been determined by the decision of the Court of Appeal in Re P (A Child) [2008] EWCA Civ 535 and that that decision is unaffected by Re B (A Child)(Care Proceedings: Threshold) and Re B-S (Children).

 

Re P is undoubtedly a very strong authority for sanctioning a dual-planning care plan of the type “Look for adoption placement for six months, and then long-term foster if not successful”  – it is a Court of Appeal authority, the former President gave the judgment – it gives the practice ringing endorsement and deals with the topic in detail, and it absolutely isn’t up to a County Court Judge to decline to follow that precedent when the issue is absolutely on point.

 

The obvious issue, as the Judge went on to raise, is that if in order to make a Placement Order the Judge has to say that long-term fostering won’t do, then approving a plan in which long-term fostering is the back-up seems to conflict with that.

 

I.e there is a tension between Re P and Re B-S. Both Court of Appeal authorities.  Added to the complication is that the Court of Appeal in Re B-S specifically looked at Re P and quoted it approvingly (though not on this particular dimension) so they clearly did not determine that it was no longer good law  (if indeed they could)

 

112. So far as James is concerned, although Mr Tyler’s analysis relies upon similar factors to be weighed on either side of the balance, those factors do not necessarily carry the same weight. The fact that James is 18 months younger than David together with the fact that he does not appear to have suffered the same level of emotional harm persuade me that so far as the adoption balance is concerned it comes down in favour of adoption. As with David, I am satisfied that the foster care balance comes down, narrowly, against foster care. In those circumstances, the evaluation of adoption as against long-term foster care suggests that the balance comes down in favour of adoption.


113. That, though, is not the end of the matter. There may be a more fundamental reason for rejecting adoption as the long-term outcome for David. As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?


114. I referred earlier to the decision of the Court of Appeal in Re P (A Child). Mr Tyler submits that Re P (A Child) emerges from Re B-S (Children)

‘not only unscathed but positively reinforced. The President approvingly refers to the judgment noting that it enshrines “a stringent and demanding test”’

 

I don’t wholly accept that point. When one looks at the context in which the President used those words one finds that he was talking about the approach taken in Re P (A Child) to the interpretation of the word ‘requires’ as it appears in s.52(1)(b) and not to the court’s comments on the policy of the local authority/adoption agency to engage in dual planning.


115. If the consequence of the language used in Re B (A Child)(Care Proceedings: Threshold Criteria) is that dual planning is no longer permissible then the impact on local authority care planning will be profound. In the absence of a clear indication from the appellate courts that on this issue the guidance given in Re P (A Child) is no longer to be followed, I consider myself bound by it. Notwithstanding the unease I have expressed, having conducted the required balancing exercise I am satisfied that the local authority’s final care plan for James is proportionate and (in the context of both s.1(1) Children Act 1989 and s.1(2) Adoption and Children Act 2002) in his best welfare interests.

 

 

 

I have a suspicion here that the higher Courts, maybe even the Supreme Court, are going to have to look at the tension between Re P’s endorsement of dual-planning and the logical consequences of Re B-S that if long-term fostering is a viable option for a child, you can’t make a Placement Order just because adoption is a preferable option.  And that perhaps by publishing this judgment, the Judge had in mind that this issue needed to be brought into the light to be scrutinised.

 

(In the meantime, I don’t think I’m minded to run any dual-planning final care plans)

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A head-scratcher

Posted on October 9, 2013 by suesspiciousminds

 

The decision in Re AW (A Child : Leave to revoke Placement Order : Leave to oppose adoption) 2013 and why it made me blink incessantly whilst trying to figure it out.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2967.html

 

It is a curious thing with English law, that we can end up with judgments and reported cases that are available to us AFTER big game-changers, but predate the actual game-changing case.  So although we have Re AW now, and we have already seen Re BS, the parties and the Court in Re AW were unaware of Re BS.

 

(Having said that, the Judge actually did an admirable job of balancing the competing factors, and it might actually comply with Re BS, despite having been decided in blissful unawareness of it)

Here’s the bit that made me blink

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

Are you also blinking? Read it again

 

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,

 

It appears that what happened was that a care order and placement order had been made – the parents had not attended the final hearing because the mother was pregnant with another child and was trying to conceal that from the Local Authority.

They then appealed the decision, and applied to revoke the Placement order three times, unsuccessfully.

 

The child was placed with adopters and there seem to have been some threats of judicial review.  The parents had indicated their intention to apply again to discharge the care order / revoke the placement order, and the placement occurred against that backdrop. A letter of claim had been sent which clearly intimated a judicial review was in the offing.  That would have been much more slow to resolve than in the family courts (yes, some things are slower than family court justice)

The Local Authority had thought pragmatically about a solution, and come up with the idea that making an application themselves to revoke the Placement Order to get it before the Court, whilst simultaneously making it plain that they did not want the Court to grant their application was a device which might work.

 

Those representing the adopters were, understandably pretty aghast at that approach and considered it to be misconceived, and in effect allowing the parents to run a case for revocation without meeting the two-stage test for leave to apply to revoke set out in the case law.

Has there been a change of circs, does that change justify relooking at the care plan approved by the Court?  (The LA don’t have to meet that test, so the parents could effectively be inviting the Court to grant the LA’s application, and the issue of leave wouldn’t arise)

 

Blinking now?

Thankfully, the mess was resolved by the prospective adopters getting their adoption application in, which meant that the Court could actually litigate the matter by way of the parents applying for leave to oppose the adoption

Last week, on 7th August 2013, Solicitors representing Mr and Mrs A issued an application for adoption. That fact enabled Ms Fottrell to go on to submit that the parents might achieve their central aim of securing a substantive hearing by making an application for leave to oppose the making of an adoption order. No party disagreed. Ms Fottrell suggested it was the only remedy in the current factual circumstances which does not offend the letter and spirit of the statute. And whilst that contention is almost certainly correct, it has to be said that until proceedings for adoption were begun there was no other available legal vehicle so as to enable the court to be seized of the issues.

 

The remainder of the judgment deals with the evidence heard over a three day hearing (!) on those issues and the balancing exercise that the Judge conducted to reach the decision to refuse the applications.

 

I suspect that the balancing exercise survives Re BS unscathed, it is much more thorough and comprehensive than one sometimes sees, and the Judge very much had in mind that adoption was a last resort and why.

 

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“This is some serious B-S….”

Posted on September 17, 2013 by suesspiciousminds

 

The Court of Appeal decision in Re BS (Children) 2013  is out

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1146.html

This case involved an appeal against a decision to refuse leave for a parent to oppose an adoption application, a Placement Order having already been made. Prior to Re B, this would have been an appeal unlikely to have been given permission, let alone succeed. The law on the test for leave to oppose an adoption application is well-established, and is plainly a very high test for the parent to satisfy. (Some might possibly argue that the existing case law sets a test that is nigh on insurmountable)

The Court of Appeal however, set out the wider context of an appeal dealing with adoption post Re B, and the general mood music of the higher courts in recent days that not sufficient attention is being given to what a serious and grave order a Placement Order or adoption order is.

 

Adoption – the wider context

·  Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.

·  We – all of us – share these concerns.

 

The Court of Appeal go on to set out the law as refreshed and refined by Re B, that adoption is the last resort and that it can only be the plan where “nothing else will do”

But this is new , though using Lady Hale’s judgment in Re B as a beginning:-

 

29 It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.

 

Hmmm. That seems sensible on the face of it, but of course a Local Authority could manage any risk at all whilst keeping the family together, if they kept the family together in a residential assessment centre permanently, or they had the family living at home with 18 hours a day visiting from professionals. So clearly there has to come a point in which resources play a part. It would not be reasonable for a Local Authority to spend millions on one family, probably not reasonable for them to spend half a million on one family, just to keep them together. The crunch therefore comes at where what a parent and Court consider to be reasonable allocation of resources to keep a family together clashes with what the Local Authority consider reasonable.

It seems not quite right to me to suggest that the LA cannot run such an argument – of course, the Court must have the ability to reject it and tell the Local Authority that their plan is refused, to make a less interventionist order and that the LA then have to make the best of it. But this formulation rather suggests that the Court can dictate the plan of support in the community.

I am struggling to fathom why a Local Authority should not press for adoption where they are unable or unwilling to support another form of order – surely that is the exact situation in which they would. The Local Authority can’t seek a Placement Order UNLESS they are satisfied that nothing else will do.  

In layman’s terms, what this really means is that if the Court is faced with a plan that allows the family to be together, the LA cannot oppose that plan on the basis that the resources required to make the plan work would be unreasonable.  That is a major development.

It seems to me that this would hold up for reasonable resource expenditure, but particularly in times of austerity, I suspect that Local Authorities won’t be quietly taking the “blank cheque” approach hinted at here. I also suspect that Barry comes into play in any later challenge.

Moving on, the Court of Appeal gave guidance about the evidential requirements for the Court to make a Placement Order and endorse a plan of adoption. It is fair to say that the Court of Appeal hint that Courts have become too lax, and too reliant on stock phrases and formulas

Adoption – essentials: (i) proper evidence

·  First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

“evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.”

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

“An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options”.

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

“the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family”.

We agree with all of this.

·  Too often this essential material is lacking. As Black LJ said in Re V (Children) [2013] EWCA Civ 913, para 88:

“I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/ reports and that this was not done here will not have assisted the judge in his determination of the issue.”

In the Plymouth case she had said this (para 47):

“In some respects the reports of the guardian and the social worker, and the social worker’s statement, are very detailed, giving information about health and likes and dislikes, wishes and feelings. However there is surprisingly little detail about the central issue of the type of placement that will best meet the children’s needs … In part, this may be an unfortunate by-product of the entirely proper use, by both witnesses, of the checklist of factors and, in the case of the social worker’s placement report, of the required pro forma. However, the court requires not only a list of the factors that are relevant to the central decision but also a narrative account of how they fit together, including an analysis of the pros and cons of the various orders that might realistically be under consideration given the circumstances of the children, and a fully reasoned recommendation.”

·  Black LJ has not altered the views that she expressed on these earlier occasions and the other members of the court agree with every word of them. We draw attention in particular to the need for “analysis of the pros and cons” and a “fully reasoned recommendation”. These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of ‘balance sheet’ first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.

·  It is particularly disheartening that Black LJ’s words three years ago in the Plymouth case seem to have had so little effect.

 

 

The Court of Appeal go on to address specificially a type of formulation in social work or guardian evidence as to why adoption is required and reject it as being wholly insufficient. Raise your hand if you’ve never seen the case for adoption set out in this type of way

 

23 The allocated social worker in her written statement recommended that [S] needed:

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

24 With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

25 The independent social worker did not support adoption or removal but did describe the options which were before the court when the mediation opportunity was allowed:

“Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of remaining with the same primary carer and the opportunity to be raised within her birth family. I do not consider that the situation within the family is suitable at present for this Order to be made.

Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be resolved in a timely manner.”

26 In order to choose between the options the judge needed evidence which was not provided. The judge’s conclusion was a choice of one option over another that was neither reasoned nor evidenced within the proceedings. That vitiated her evaluative judgment which was accordingly wrong.”

·  Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

·  This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

I don’t disagree with any of this – we do need to move away from simply dealing with the enormity of adoption by the stock phrase “It is a draconian order, however”  and actually dealing with the rigorous arguments for and against, for the particular children in question.  That is going to require substantially more detailed social work and Guardian statements (at exactly the time when the push is towards slimmer and shorter statements)

Next topic – not just the LA making their case better, but judges producing much better judgments.

Adoption – essentials: (ii) adequately reasoned judgments

·  The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):

“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

·  The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

·  In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

·  We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”

·  McFarlane LJ added this important observation (para 53) which we respectfully endorse:

“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

·  We make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance in what are amongst the most significant and difficult cases that family judges ever have to decide. Too often they are given scant attention or afforded little more than lip service. And they are important in setting the context against which we have to determine the specific question we have to decide in relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.

I again, don’t disagree with any of this. I do wonder whether in reality this means that Placement Orders can’t be determined by the Family Proceedings Court – whilst they could make the right decisions, that level of intensity and rigour and analysis in a judgment seems very arduous for a Bench.

At this point, the Court of Appeal clearly recognised that their direction of travel might be perceived as oppositional to the revised Public Law Outline, and are at pains to point out why it isn’t.  (Many people, myself included, considered the revised PLO to be largely about a rush to adoption)

 

Adoption – the current reforms to the family justice system

·  First, however, we need to see how all this fits in with the current reforms to the family justice system and, in particular, with the revised Public Law Outline.

·  Our emphasis on the need for proper analysis, argument, assessment and reasoning accords entirely with a central part of the reforms. In his ‘View from the President’s Chambers’ the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see ‘The process of reform: the revised PLO and the local authority’, [2013] Fam Law 680, and ‘The process of reform: expert evidence’, [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.

·  We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

 

My quick view on this – we might finish cases in 26 weeks, but they will be coming back for another round after LA plans rejected and a trial at home hasn’t worked (I hope I am wrong)

With all of that in mind, it isn’t entirely surprising  that the Court of Appeal looked at the Warwickshire and Re P tests for leave to oppose adoption, and wrote a slightly  new one reinforcing a rather different emphasis

Section 47(5) of the 2002 Act – the proper approach

·  Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.

·  There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

·  In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent’s ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child’s welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

I suspect one would see more successful leave to oppose applications. What that will mean for adoptive parents is yet to be seen – also what it means for the Legal Aid Agency who historically don’t fund these applications is yet to betested.

The Court of Appeal go on to set out that the test for the appellant court was whether the Judge was “wrong” rather than plainly wrong, but actually dismiss the appeal itself.

 

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What the Court want from experts, and other adventures in judicial ass-whupping

Posted on August 19, 2013 by suesspiciousminds

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

  1. Dr Rylance’s report
  1. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.
  1. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.
  1. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4th and 5th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.
  1. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.
  1. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.
  1. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.
  1. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.
  1. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

  1. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.
  1. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.
  1. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”
  1. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.
  1. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.
  1. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.
  1. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.
  1. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.
  1. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.
  1. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

  1. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.
  1. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”
  1. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.
  1. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”
  1. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”
  1. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.
  1. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.
  1. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.
  1. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

  1. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.
  1. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.
  1. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

  1. 94.   Case handling by the local authority
  1. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.
  1. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.
  1. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.
  1. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
  1. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.
  1. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.
  1. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”
  1. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”
  1. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.
  1. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.
  1. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.

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Guidance to Local Authorities where one parent murders the other

Posted on August 13, 2013 by suesspiciousminds

Thankfully such cases are relatively rare – not perhaps as rare as one would hope – a third of female homicide victims are killed by their current or former partner (the figures for male homicide victims are 6% – males can of course be the victims of abuse, not just the perpetrators).

Dreadfully, the Home Office crime statistics reflected in 2001 and 2005 that this represented two women per week.   (And even worse, if that is possible, the statistic that treating the physical injuries from domestic violence accounts for 3% of the annual NHS budget – Wellby 2004)

In such a case, what ought the Local Authority to do about it?

The High Court addressed the issue in Re N v B and Others 2013

http://www.familylawweek.co.uk/site.aspx?i=ed115442

The children’s father had killed the mother and was imprisoned as a result. The children went to stay with their maternal grandmother, who in due course applied for an adoption order in relation to them. There was considerable debate before the Court as to whether adoption or Special Guardianship was the right order to make – there being no dispute whatsoever that the placement with grandmother was the right one.

The Court analysed the issues to be taken into account when making such a decision very carefully

22. The paramount consideration of the court when considering this issue is the welfare of the child throughout his life, in accordance with section 1 Adoption and Children Act 2002 (‘ACA 2002’). The court must consider which order will better serve the welfare of the particular child (per Wall LJ Re S (Adoption Order or Special Guardianship) [2007] EWCA Civ 54 at para 47 (iii)). There is no presumption in favour of one order or the other, each case turns on its own facts. In accordance with ss 47 and 52 ACA 2002 in considering an adoption order the court needs to consider whether the welfare of the child requires the consent of the father to be dispensed with.

23. One of the relevant considerations in this case is whether an adoption order would skew the family relationships in the grandmother’s home. The grandmother’s brother is the father’s father; the children’s parents were first cousins. The children live with the grandmother and maternal aunts and uncles. They have contact with another maternal aunt who lives nearby with her husband and son, and their great maternal aunts who also live nearby. In the event of an adoption order their maternal grandmother would become their adoptive mother. Their aunts and uncles would become their legal half siblings. The paternal grandfather would become their paternal uncle and the father their first cousin. Following the death of the mother the grandmother has severed all contact with her brother and his family.

24. This shift in family relationships, in the event of an adoption order being made, was explained in some detail to the grandmother by a Senior Practitioner in the Local Authority Adoption Team, as described in the special guardianship report. She notes the grandmother had an understanding of the consequent shift in legal relationships throughout the family in the event of an adoption order being made.

25. InS v B and Newport City Council: Re K [2007] 1 FLR 1116 the impact of an adoption order in family placements was considered important by Mr Justice Hedley, when refusing to make an adoption order in favour of a special guardianship order. At paragraph 22, following a review of the underlying policy for adoption, he stated

‘One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming.’

26. The skewing of familial relationships is clearly an important factor to put in the balance.

27. Another important factor is the concern the grandmother has about the father seeking to exercise his parental responsibility.

The last point was a particularly significant one here, since under a Special Guardianship Order, the grandmother would have found herself in the position of having to regularly consult with the father (who was after all, the man who killed her daughter) about the children’s upbringing, whereas an adoption order would end his parental responsibility.  The counterpoint to that is that it alters legally the relationship between the children, such that their grandmother becomes in law, legally their mother, their aunt becomes their sister, any cousins would become their nieces and nephews (and oddly, that their birth mother, becomes legally their deceased sister)

The Court concluded that in the circumstances of this case, the advantages of adoption far outweighed those of Special Guardianship

31.  I have reached the clear conclusion, in the particular circumstances of this case the welfare of each of these children throughout their lives can only be met by an adoption order being made rather than a special guardianship order. I have reached that conclusion for the following reasons:

(1) What both children need now and for the rest of their minority and beyond is a secure home. That is what their grandmother can provide, supported by the maternal family who live there or nearby. They wish to remain in her care. As the Children’s Guardian submitted there is no birth parent that can care for them.

(2) Although it is right that an adoption order would skew family relationships I am confident that despite the shift in family relationships that would follow, the children will know the realities of the relationships within the family. That is clear from the grandmother’s recent statement and the observation in the special guardianship report that the grandmother and the family are ‘secure in their knowledge of the children’s identities and they know the children’s histories’.  This view is supported by the conclusions of the Children’s Guardian at paragraphs 24 – 26 of his report.

(3) In this particular case a powerful consideration is the need for the grandmother not to have to share parental responsibility with the father. Particularly in circumstances where I am satisfied, from what the father has said, that he is likely to try and exercise it, even with a restriction under s 91 (14) and other restrictions under s 8. As recently as December 2012 he was declaring that it was unfair for him not to have contact with the children; that he will keep trying and will not give up; he seeks to maintain parental responsibility and will be able to carry on seeking contact with the children. The spectre of such applications will undermine the security of the placement that is so essential to the children’s future stability.

(4) Bearing in mind the background to the criminal offences the maternal family fear manipulation by the father, directly or indirectly, so that he could control the children’s lives. In the circumstances of this case that fear is very real due to the background of the father’s behaviour, and is confirmed by the papers in the court bundle from the criminal proceedings. In particular the psychiatric report, the pre-sentence report and the sentencing remarks from the Crown Court. He was described in the pre sentence report as being extremely controlling and highly dangerous. From what I have read I wholly agree with that description. I am satisfied that a special guardianship order, even supported with orders made under s 8 and 91 (14) CA 1989 severely controlling the father’s ability to exercise his parental responsibility, will not, in the circumstances of this case, provide the lifelong security that these children need in being securely placed with their grandmother.

(5) The grandmother has carefully considered the consequences of adoption and the lifelong nature of adoption. They have been explained to her by the senior practitioner from the adoption team, as set out in detail in the special guardianship report. She understands the change to the children’s birth certificate would mean that the mother’s name and details would be removed. She does not plan to change the children’s names.

(6) In her most recent statement the grandmother deals with the religious objections raised by the father to an adoption order. She sets out very clearly how she sees the adoption of the children by her in the circumstances of this case (where she does not intend to change the names, and where any limited inheritance consequences can be covered by putting arrangements in place). She is satisfied, in the circumstances of this case, with the arrangements that would be put in place by her, that adoption is acceptable under Islamic law. I agree. This is endorsed by the Children’s Guardian, who says he is confident the family can manage this with sensitivity and support.

(7) I agree with the recommendation of the Children’s Guardian that permanence and long term safeguarding for the children can only be guaranteed through the making of an adoption order. For the reasons outlined above it is the order that best meets their long term welfare needs.
In those circumstances, I will dispense with the father’s consent as the welfare needs of each of the children, in my judgment, demand I do so.

The Court was very critical of the Local Authority, who had been directed to file a section 37 report and did so very very late  – 3 ½ months late (despite the circumstances of the case being one that an outsider might imagine that the LA would take seriously)

I imagine that this sentence may crop up in submissions in family law cases (in combination with the recent decision of Mr Justice Cobb that a Local Authority can be hit for costs when failing to undertake a proper s37 report)

I am quite satisfied the obligation is on the party seeking an extension of time to apply for one (in the absence of any other direction being given by the court). The court had made an order and the expectation is that it will be complied with.

(i.e, don’t just submit the report late, seek permission of the Court to do so in advance of the report being late. )

But then this bit is particularly important for Local Authorities

35.  I wholly endorse the guidance given by Mrs Justice Hogg in Re A and B [2010] EWHC 3824 (Fam) in particular paragraph 2 which provides

“The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority’s legal department.”

And this bit from the same case is important too

 In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority

My initial thought was that it might not be utterly straightforward to establish that the threshold criteria was made out, and I had quite a long rambling discussion about that, which I can spare you all from.

The other reported case of Re A and B 2010  http://www.familylawweek.co.uk/site.aspx?i=ed82613  initially did not seem to help, as the threshold was dealt with by this single line

All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother’s death at the hands of their father.

But the High Court later go on to say :-

Threshold
1. In all cases where one parent has been killed by the other the threshold criteria will be met.

And thus, no further enquiry into the nature of the harm is needed. One does not need to explore how that harm is said to have manifested or would need to be evidenced. I can’t actually think of any other situation where threshold is so black and white – there’s no mitigation, no case specific issues, threshold is simply met in those circumstances.

(That of course, inadvertently means that a parent who kills the other in self-defence, perhaps during a violent assault by the other, has crossed the threshold and has significantly harmed the child; but crossing the threshold does not of course mean that the children would be removed. What about where one parent is driving, perhaps drunk and the passenger is killed? The surviving parent might well be charged with Causing Death by Dangerous Driving – it seems that the threshold would be crossed there as well)

Whilst one immediately thinks that it is one of the gravest offences that a human can commit and thus of course threshold is met, we know from many authorities, most recently Re J that being responsible or jointly responsible for the death of a child does not mean that the threshold is met in relation to other children in the future.

Local Authorities would need to be alert to cases where a parent murders the other, to ensure that they seize themselves of the matter and provide services and support to help meet the children’s needs at this dreadful time.

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