Category Archives: adoption

Laying down a marker – the Court of Appeal speaks on analysis of welfare checklist

Posted on August 6, 2013 by suesspiciousminds

As regular readers will know, we had been anticipating the Court of Appeal in Re B S  to deal with issues of how appellant Courts were to tackle appeals in the light of the changes to the tests highlighted by the Supreme Court in Re B.

We hadn’t necessarily anticipated that the Court of Appeal would get under the bonnet of this issue before then, but to an extent, they have, in Re G (A child) 2013. The case really delves very carefully into an often overlooked aspect of the judicial decision-making – the welfare checklist.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/965.html

The facts of the original case , determined by a District Judge (which was appealed, and then that appeal decision appealed to the Court of Appeal) aren’t really that important.

What is important is the Court of Appeal’s clear guidance as to how Judges in care proceedings are to tackle the task.

In broad terms, this is the order of events

  1. The Court must establish the facts and particularly to make findings on any relevant facts or disputed facts
  2. The Court must then evaluate whether on the basis of those facts, the section 31 threshold is crossed
  3. The Court should then apply the welfare checklist to the circumstances of the case
  4. If the case involves a plan of adoption, the Court should also apply the welfare checklist as set out in the Adoption and Children Act 2002 to the circumstances of the case
  5. The Court should then consider proportionality when determining what order to make, and in an adoption case must specifically address the formulation set down by the Supreme Court in Re B  (in essence that ‘nothing else will do’

Nothing within that sequence of events is at all controversial or new. What might be new is the Court of Appeal’s focus on the welfare checklist and how that exercise must be approached judicially, and by any appellant Court looking at whether the exercise was approached.

In particular whether the approach of dealing with the welfare checklist in a linear way – by looking at the merits of the parents case against the welfare checklist and then only at point (g) range of powers available to the Court mapping out the pros and cons of the various options, is in fact the wrong way to go about things.

  1. The wording of certain elements of the welfare checklist must, I would suggest, involve a direct comparison of the relevant options that are being considered, for example:

(c) the likely effect on him of any change in his circumstances;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.

  1. Under s 1(3)(c), consideration of the effect of any change in the child’s circumstances must involve considering, in the present case, not just the prospect of returning to the mother’s care but must include consideration of the effects, positive and negative, of placement in long-term foster care. Under s 1(3)(e), consideration of the risk of harm obviously will include the potential for future harm from parental care, but must also require evaluation of any risk of harm from the alternative option provided by ‘any other person’, namely the local authority as corporate parent, for example emotional harm as a result of long-term separation of a child from his parent. Under s 1(3)(f), when considering how capable ‘each of his parents, and any other person’ are to meet the child’s needs, again I would suggest that, alongside consideration of the parent’s capacity, there is a need to look at the strengths and detriments in the local authority’s capacity to meet his needs through long-term fostering.

 

What the Court of Appeal are saying here is that the Court must not simply look at the case for the child remaining with the parent, analyse this, and then if determining that this is not possible, move on to considering what type of order would be appropriate.  The Court cannot properly decide whether the child should be with a parent based on the pluses and minuses of THAT option, but must weigh into the balance the pluses and minuses of the OTHER options.

It is not, as they say, a linear exercise, but one of laying out the various options and comparing them alongside one another. When considering, for example, the ‘capacity of the parent or any other person to meet his needs’ the Court must not only look at what the parent could offer under no order or a Supervision Order, but what the Local Authority could offer (including any deficiencies) under a Care Order or Placement Order.

The structure of the welfare checklist, culminating as it does with the “range of powers available to the Court” seems to tempt the Court into approaching that comparison of the various orders only at that stage, but this would be the wrong approach.

They develop this further – underlining mine

  1. 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.
  1. The linear approach, in my view, 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.
  1. One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach. The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at ‘rehabilitation to a parent’ as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable. I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child’s welfare at the end of which one of a range of options has to be chosen.

And later

  1. A further concern about the linear model is that 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.
  1. In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge’s judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. 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.

I think those words about “formulaic window dressing” are apt – and are similar in nature to the reinforcement of the Supreme Court in Re B that the Court have to genuinely look at and tackle proportionality and human rights, rather than just the stock phrases of ‘the interference with article 8 is proportionate and necessary in this case to safeguard the child’ without looking behind that stock phrase into what is genuinely meant and intended.  When the term ‘draconian’ is thrown about the Court room, which it is, and often– if one were somehow able to calculate all of the occasions when the word ‘draconian’ was uttered I think 85% or more would be in the Family Court;  it isn’t sufficient just to say the word, those present must feel the weight of what that word really means.

It becomes clear then, that the role of a Court in determining any application for public law orders is to get heavily stuck into the Welfare Checklist. The culture that has sprung up over years of the Welfare Checklist largely being extracted from the social worker’s statement with perhaps a few corrections or additions here or there, is unlikely, in the light of Re G to be sufficient.

This must be an comparative exercise balancing each of the options open to the Court and weighing them each against the other. It would be fair to say that most Welfare Checklists I have seen have been constructed more on the linear model, where one starts with an assumption that the child should be placed with the parents and analyses whether or not that is possible, rather than following each of the options through each stage and weighing each against the other. The weighing process, if any, tends to happen at the very end of the Welfare Checklist once the linear process has been undertaken (resulting in either ‘Yes, child can be with the parent’ or ‘no, the child can’t be with the parent’) when it comes to the Range of Powers available to the Court and positing which orders are appropriate on the basis of the linear process having ruled in or ruled out the child being with a parent.

Re G makes the Welfare Checklist even more important than it is at present, at the very time of course, that the PLO standardised documents take it out as a flowing self-contained part of the social work evidence and it vanished from Guardian’s reports long ago in all but very rare cases. Judges will now have to fish around in the social work statement for the social work analysis of the welfare checklist, scattered as it now is throughout the document rather than residing in one defined section.

As the Court of Appeal say in this case about the two Judges whose decisions were the subject of this appeal (underlining mine again)

Before moving on, I would like to acknowledge the strong professional sympathy that I feel for DJ               and HHJ                          who find themselves in the invidious position of having their judgments subjected to scrutiny by the Court of Appeal armed, as it always is, with 20/20 hindsight but, on this occasion, also armed with a strong decision from the Supreme Court that has been injected into the mix between their respective involvements in the case and this judgment. I wish to stress that the observations that now follow are made in this case because it provides the opportunity to do so, and not because there is anything in these two judgments which is worthy of additional individual criticism. My working life is now spent very largely in reading first instance, and less frequently, first level appeal judgments. The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in Re B. I therefore hope that DJ              and HHJ                      will be stoic and may see their judgments in this case as being the unwitting launch vehicles for what now follows, rather than its specific target.

I suspect that in the immediate future, advocates will be particularly alert during the passages of a judgment that deal with the welfare checklist, because the cursory race through it, or  formulation of “I adopt the welfare checklist as set out in the social work final evidence” will not be sufficient.

(Moving on from this, one MIGHT conclude that in order for Judges to properly and thoroughly analyse the weaknesses of the care that the State can provide for any particular child, some proper independent, neutral, rigorous and up to date research on delay, breakdown rates, abuse in State care,  the factors that are indicative of a successful or poor prognosis for children in State care or adoptive placements, children’s thoughts and feelings about being cared for by the State, how issues of loss endure or resolve for these children and outcomes for children in State care would be both extremely helpful and long overdue.  Otherwise there is a risk that the information is either overly rose-tinted or overly negative depending on who is providing it to the Judge)

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Doncaster, so much to answer for *

Posted on July 16, 2013 by suesspiciousminds

The report into the failings of Doncaster Children’s Services has been lodged and Michael Gove has announced that he accepts the recommendations to take responsibility for child protection away from Doncaster Council and give it to a new arms-length trust.

 The report is here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212598/Ways_forward_for_children_s_services_in_Doncaster.pdf 

 There’s a good news article on the story at Community Care here

 http://www.communitycare.co.uk/articles/16/07/2013/119339/doncaster-children39s-services-outsourced-for-five-years-after-damning.htm

 

 The report then…to say it is damning is a wincing understatement. You really, really don’t want, when you are on special measures and have been regularly monstered by Ofsted, to have the independent review say things like this :-

 

“There is little hard evidence showing any improvement in the performance and outcomes of children’s social care services between the publication of the Ofsted Report in November 2012 and the beginning of this Panel’s work in April 2013.”

or this

 

“But, perhaps more importantly, our judgments, and the recommendations based on them, are derived from the history of Doncaster children’s services. As we have seen, there have been many attempts to tackle the problems within the service, mostly involving changes of senior management similar to those currently under way, all of which have promised much, but have delivered little. If the lack of leadership or appropriate senior management was the problem, then we might expect the difficulties associated with Doncaster children’s services to have already been resolved. But despite numerous new leaders, significant additional resources and the many commitments to improve made by the Council’s decision makers, the problems remain. Fundamentally the problem seems to be one of culture: there is a culture of failure and disillusion that pervades the service and that serves to obstruct every attempt at reform”

 

I’m not going to comment on whether the review is a fair one or not, I simply don’t know enough either way. Nor do I have any axe to grind, I don’t know anyone at Doncaster to say that they are good or bad.  I feel sorry for the individuals working there, and of course the families that are working with the department.

 

Nor is it abundantly plain to me that simply detaching the service from the control of the Council and giving it a new name will fix these problems. There’s a horrible cycle you can get in when you are at a Council with a bad reputation for child protection – your best social workers leave, the ones you are interviewing for new posts aren’t really that keen on joining up, and the ones who stay can feel ground down and disillusioned. I imagine that Doncaster, for the last few years, hasn’t been a fun place to work, and I would hate people to go away with the depression that its workers are no good. I think there’s far, far more to it than that.

 

But it is a startling state of affairs that as a result of this report and Michael Gove’s response to it, that child protection services in Doncaster will no longer be run by local government but to an outsourced independent trust, and that this will be for the next ten years  – there’s a review after five years to see whether Doncaster Council should get it back  (but I can’t see how, given that they will no longer have any managers or staff in the interim, they can demonstrate that they are in better shape in five years then they are now)

 

I was going to say that it was a unique state of affairs, but I suspect that this may not be the case for that much longer. It is unique today, it may not be a unique solution this time next year.  [There’s a very large city in England that has had a spate of child deaths and serious case reviews and has gone through Directors of Children’s Services and poor Ofsted reports, for example]

 

This is also a clear indication that all of the sabre-rattling about adoptions and councils who don’t hit the Government aspirations about pace of adoption and approval of adopters IS going somewhere. There’s a lot of sabre-rattling, but there’s definitely a sabre in there.

 

Doncaster was of course famously one of the first Local Authorities to take the view that it was okay to have a Director of Social Services who had never done any social work, or managed a social worker or knew anything about social work, or indeed local government work, or education work, or work involving children. The background in question being managing a frozen food company. That was back in 2004, that person leaving in 2007.

 

“Management skills are management skills” was the mantra, and a belief that those core transferrable skills of managing were more important than knowing anything about the service that’s being managed.

 

Perhaps it turns out that this is true when you’re dealing with groceries – there’s not much difference managing Asda and Tescos, but maybe you can’t simply move from frozen Mini-Kievs to Social Workers.   In defence of that Director, the report suggests that there hasn’t been a turnaround since various changes in the head of the service.

 

 

How is the shift from local government to the trust going to work?

 

Well, the new service will start in April next year.  It won’t be controlled by Doncaster Council, just funded by it, and the Director of Hackney’s social services department will be the “commissioner of Children’s services” for the new trust ( one might think he would already be pretty busy running Hackney).

 

The start-up costs and funding aren’t clear, and nor is it clear what will happen to all the existing staff and management. Ordinarily, if a Local Authority tendered out its services, TUPE would bite on existing staff and they would either transfer across on protected pay and conditions or be made redundant. You’d need to be an employment lawyer to have any idea what happens when it isn’t a tendering out, but a ripping out of the service by central government.  My best guess is that TUPE still bites.

 

Or indeed what happens to the £1.8 million contract Doncaster Council had just entered into with IMPOWER to provide some key children’s services functions.

 

What happens if the new trust overspends its budget? Can they come to Doncaster Council and ask for more resources? Who will SET the budget? Will it be set by Gove, with a figure for how much it will alter each year? What happens if/when Gove is not the responsible minister for setting that budget? Or is the budget set by Doncaster Council? And if so, can they make cuts if they are under budgetary pressure elsewhere?

 

Who is responsible if someone sues for negligence? Does Doncaster’s Monitoring Officer have any sway over the trust? Does the Local Government Ombudsman?

 

The report suggests that the trust should be owned by its staff. Well, that works brilliantly with a Mini-Chicken-Kiev factory, since the staff can share in the profits that are made; but the trust won’t be making any profits (or will it?) and thus why the hell would anyone working for children’s services in Doncaster through the trust want to part-own it? What’s the up-side for having shares in it?

 

 

And on a wider political basis of accountability, how comfortable do we feel with the idea that central government can take control of local services away from a democratically elected local council? This is thrown into even sharper focus when one realises that Michael Gove is obviously true blue Tory and Doncaster Council is firmly Labour.

 

[Doncaster’s problems with central government over this issue do massively predate the coalition government, to be fair, Labour were giving them a hard time too]

 

If the people of Doncaster think that that their council is not much cop at running children’s services, isn’t that really a matter for them and their ballot box?

 

Obviously something had to be done, if Doncaster was under such scrutiny for so many years and independent reviews kept finding the same problems. The Government can’t just keep saying  “If you don’t get better, something bad will happen to you” , eventually something bad has to happen. This is the equivalent of “If you don’t look after your toys, I’ll take them off you”

 

But somebody still has to look after those toys.

 

 

[* Yes, I know the Smiths song is “Manchester, so much to answer for” but if you can find a pop culture reference to Doncaster, let me know.  “Don-caster spell on you” is a bit tenuous, even for me]

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It’s as plainly wrong as the nose on your face

Posted on July 15, 2013 by suesspiciousminds

In family cases now, is the appeal test “plainly wrong”  or “wrong?”  – Court of Appeal to grapple with this issue.

I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.

I didn’t think it might happen so quickly.

In Re BS (Children) 2013,  Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.

http://www.familylawweek.co.uk/site.aspx?i=ed114967

In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”

The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.

You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.

Or at least, it wasn’t.

The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.

Here’s what MacFarlane LJ said in the permission judgment

17. The short description of the matters I have in mind are as follows.  Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test.  The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”.  Then later in the next page of the judgment, she said again, “2nd and 3rd test have to be looked at together”.  I consider it is arguable that that displays an erroneous understanding of the test.  My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing.  That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

18. The second reason for granting permission to appeal arises from Re B.  First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption.  Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court.  In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable.  Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged.  Those are the very circumstances that trigger the jurisdiction under section 47(5).

19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties.  Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged.  Arguably such a review is, in my opinion, justified on the facts of this case.

21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose.  Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”.  There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”.  That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold

They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .

The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’)  and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met

(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)

44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.

 

 

Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B  (cough, cough), the effect of that passage is fourfold

  1. Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.
  1. As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”
  1. The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong)  and one where they are not (where they just have to be wrong)
  1. Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.

For what it is worth, my own view is that on the Re B  “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.

Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view”  and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).

I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.

But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.

I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’

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Here comes my nineteenth nervous (adoption) breakdown

Posted on July 12, 2013 by suesspiciousminds

A quirky little case, considering what happens when an adoptive placement breaks down to the point where all concerned would really like to effectively delete the adoption order.

 Re W (2013)

 http://www.familylawweek.co.uk/site.aspx?i=ed114972

 

The child had obviously been subject to previous care proceedings, a Placement Order made and in due course an adoption order made. The adoptive placement with Mr and Mrs Y did not work out, and broke down. The child was moved by the Local Authority, with consent of the adoptive parents, to another foster placement and settled well there.

 The LA then had the issue of what to do about the child’s legal status. The only people who held parental responsibility for her were the adoptive parents Mr and Mrs Y  (by virtue of the adoptive order) and the birth parents no longer had any connection in law to the child.

 

Mr and Mrs Y did not want to have any contact with the child or any further part in her life, and were in agreement with the Local Authority that the best thing for the child would be for the adoption to be revoked.

 

Easier said than done. The only criteria for revocation of an adoption order under the Adoption and Children Act 2002 was not applicable here,

 

S55

  (1) Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order.
 

 

    (2) In relation to an adoption order made by a magistrates’ court, the reference in subsection (1) to the court by which the order was made includes a court acting for the same petty sessions area.

 

 

Clearly that wasn’t the reason for the adoption being revoked here, so it didn’t apply.

 

The case law also didn’t help, as the overwhelming thrust of the case law is that revocation of an adoption order should only be where the order had been made by fraud or mistake – the seminal case being Re B (Adoption : Setting Aside) 1995 1 FLR 1   – where a child was adopted when the adopters believed the child to be Jewish , but was in fact of mixed Catholic and Muslim parentage , causing considerable problems for the child in later life (the adoption had been made in 1959), and the Court determined that there was no jurisdiction to set the order aside.

 

The LA sought to persuade the Court to use the inherent jurisdiction to revoke the adoption order, on the basis that all parties were in agreement that this would be the best thing for the child.

 

The Court flagged up a number of issues that would arise from accepting that the Court potentially COULD use the inherent jurisdiction to revoke the adoption order :-

 

 

(a)   Should the child be separately represented?

(b)   Would there need to be an expert assessment of her?

(c)   Are the birth parents entitled to be served with the application? What impact might that have on the child?

(d)   The general public policy issues of expanding the circumstances in which adoption orders (which are by definition final and definitive orders) might be overturned.

 

 

The Court ruled that if it was contemplated that the adoption order might be revoked, that would necessarily revert the position in law to that of a Care Order, and thus the birth parents would re-acquire their parental responsibility, and thus it was inconceivable that such an application could be properly dealt with by the Court without the birth parents being involved.

 

The Court declined to use the inherent jurisdiction, and made a Care Order, which of course then shares parental responsibility for the child between the Local Authority and Mr and Mrs Y (who were clear that they did not intend to exercise PR)

 

This is an interesting little nugget at the end, and is, I think the first reported case where 26 weeks has played a part in the decision.

 

14. Turning then to the Care proceedings, as I say it seems to me to be of the greatest benefit to the child and all concerned that these are now brought to an end.  They have been running for getting close to what is now the 26 weeks ‘deadline’ under the new approach.  I have read the Care Plan dated 19th March 2013; there is no issue about the Threshold being met.  All parties agree that there is to be a Care Order and, in my judgment, the sooner it is made the better.  I shall therefore make it today.

 

Hardly controversial usage of 26 weeks, since everyone was in agreement that a Care Order was the right order.

 

A bit of a shame that the case did not address the curious little quirk of dealing with adoption breakdowns  – all of the duties on the LA to explore options for placement within the family still apply, but of course given that Mr and Mrs Y are the legal parents of the child, and the birth parents are not, those duties apply to the extended family of Mr and Mrs Y.

 

In reality of course, unless the placement has been long and enduring and then suddenly breaks down, it is pretty unlikely that extended family members of the adopters would seek to care for the child, since there is no blood relationship, but it is a curious little quirk and one I think a lot of people miss.

 

 

I think that this decision is correct on the law, but there’s potentially a deficiency in the law which needs to be addressed, where a child is legally bound to parents chosen for her by the State, when those adoptive parents cut their ties with her, but that legal relationship can’t be ended.

 

That’s a fairly unusual decision – most adopters tend to stay involved and committed to the child even after a breakdown, and I’d draw a distinction between those adoptive parents who continue to play a parental role and those whose involvement in the child’s life ends when the placement breaks down.

 

I’m never terribly fond of adopters who when the placement break down, have the ‘wash our hands of her’ approach. If you adopt a child, it isn’t like buying a cardie from M&S – you don’t just hand it back and forget the whole thing ever happened.   [I don’t know if that’s what happened with Mr and Mrs Y, but the judgment doesn’t read attractively to me]

 

Given that the child won’t be placed in another adoptive placement (or is unlikely to be), Mr and Mrs Y will legally be her parents for the rest of her life, AND the relationship with her birth parents which was severed in order that she could be placed in a permanent adoptive placement remains severed even though no such placement will be obtained.

 

As an issue of natural justice, it seems fairer to me for the position in law to be that the adoption order is revoked, and the situation revert to a Care Order, with the child being in foster care, and the birth parents Parental Responsibility being restored. If that means that they challenge the arrangements and apply to discharge the Care Order, then so be it.

That’s NOT how the law is, and this decision was right in law, but I don’t see that this sort of case is miles away from the ‘statutory orphans’ case. There won’t be anyone other than the State exercising PR for this child, and others like her.

 

If the child had been placed in long-term fostering (which is what will happen to her now), the birth parents would have retained parental responsibility and been entitled to be consulted on major decisions, to participate in Looked After Child reviews, and always had the opportunity to make an application to Court if they were sufficiently concerned about the Local Authority’s care of the child. 

In a case like this, where the actual care of the child BECOMES long-term fostering, as a result of circumstances, and there’s nobody exercising PR for the child other than the State, why should that be any different?

I don’t know if anyone in the case floated the issue of a declaration of incompatibility with the Human Rights Act, but that would seem to me the only thing missing from the judgment. If a child who is adopted, has legal ties with birth parents cut, then has the placement breakdown and can’t sever the legal links with adoptive parents who have washed their hands of her, that seems to me a gap in the law that warrants a change.

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“As a drunkard uses a lamppost…”

Posted on May 14, 2013 by suesspiciousminds

 

 A discussion of the new CAFCASS figures on care proceedings issued by Local Authority area. Warning, contains maths, guesswork and ranting.

http://www.cafcass.gov.uk/media/147399/care_demand_per_child_population_by_la_under_embargo_until_9th_may_2013.pdf

 

“He uses statistics as a drunkard uses a lamppost – not for illumination, but for support”   – Winston Churchill

 

 They are interesting though, as the very least, they show up the real differences from area to area of the country. Some of that isn’t terribly surprising, one would not be shocked, for example that inner cities have higher rates of care proceedings than say Saffron Walden.  But there does seem to be quite a lot of variance even taking into account that different authorities have different social problems

 One might be surprised, for example, to see that Hackney have a lower number of care proceedings per 10,000 children than those notorious hot-beds of poverty, erm Kensington and Westminster.  Or indeed that Hackney’s figures on care proceedings per 10,000 children are now twice as high as they were in the 2008 post Baby P spike. Am scratching my head about that one.

 What is also, of course interesting, is looking at an authority and comparing it to its neighbours.  And also, as a long standing local authority locum lawyer, I can also use the chart as a handy guide to where I haven’t worked yet, and which authorities I’d probably be bored stiff in   (I won’t be taking a job in the Isles of Scilly any time soon, based on this chart)

 It isn’t terribly surprising that overall, one can see a big spike post Baby P  (that’s due in part to the increased referrals, in part to the greater willingness of local authorities to take action, in part due to a reluctance to manage risks at home that might previously have been managed, and in part due to the numbers having been artificially depressed by the double whammy of the PLO and the jacking up of court fees)

 Although 13 of the 94 authorities didn’t get this spike, they actually issued on a SMALLER proportion in the year post Baby P – including Hackney.

 You can also see that whilst a number of authorities have seen that spike settle down and decrease (though not back to pre Baby P levels) the overall trend is still increasing, from an average of 6 proceedings  per 10,000 children pre Baby P, to 8 the year after, to 9.7 in 2012/13.   And quite a few authorities are issuing MORE proceedings per 10,000 children than they were in the year post Baby P.

 [One should also bear in mind that most proceedings involve more than one child, so the actual number of CHILDREN subject to care proceedings per 10,000 children is higher than 9.7, how much higher is hard to say. I’d guess that the AVERAGE number of children per care proceedings is about 1.5 – you get a lot of babies, but also a lot of large sibling groups]

 

As the other CAFCASS stats show

 http://www.cafcass.gov.uk/news/2013/april_2013_care_application_statistics.aspx

 April 2013’s figures were 20% higher than April 2012’s  (which were themselves already a high base)

 And February 2013 hit 999 applications, the highest for any month ever.  (and bear in mind that February is a short month, and it is not historically one of the spike months – which are normally coinciding with imminent long school holidays, so June/July and Christmas period)

 On my guess, those 999 applications represent 1,500 children.

 And between March 2012 and April 2013, CAFCASS received 11,064 applications   (or on my guess, 16,000-17,000 children were made the subject of care proceedings in that year)

 This all makes me a little nervous  – because when you look at the national figures for adoption recruitment, the English authorities approved 2655 adopters in the whole of last year.

 http://media.education.gov.uk/assets/files/xls/u/20130326%20underlying%20data%20for%20maps.xls#’Map C’!A1

 

Now of course, not all of the children who came into proceedings need to be adopted – one hopes that MOST of them stay with mum and dad, some more are placed with family members, some of them will be too old to be adopted even if they can’t be placed with family members. So the 16,000 children is a MUCH MUCH higher figure than the children who need adoptive placements as a result of coming into care proceedings – I don’t have any hard data to extrapolate that. *

 *[Other than the same Government adoption stats that showed 2655 adopters approved in 2012, showed 5750 children waiting for adoptive placements, which I’ve written about previously. But that doesn’t tell me how many of those children had been identified as needing a placement THAT year  ]

 That might be one of those pieces of management information that Norgrove identified as being lacking in the family justice system – what are the outcomes for children who come into the public law Court arena?   Would be much better to have some proper hard and fast statistical analysis, rather than my hamfisted bungling. 

 [By the same token, it seems to me utterly ludicrous that we have figures on the number of CASES, when what we want to know, what we actually care about, surely is the number of CHILDREN?  ]

 But it does seem to me, that there’s serious potential for more children to be coming into the State system than the State has resources to deal with. There are, of course, three ways of tackling that problem (if indeed it is a problem). Reduce the number of children who come IN to care proceedings, reduce the number who come OUT needing placements outside of families, and increase the number of adopters who can meet the need where the Court have made that serious decision. 

 I am in some doubt as to whether the Family Justice Review changes are going to reduce the numbers of children coming IN, or the numbers coming OUT. 

 Of course, I could quite easily be wrong, and just be a pessimist clutching at lampposts in the absence of straws.

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Avoiding catastrophes

Posted on April 26, 2013 by suesspiciousminds

 The peculiar, and desperately sad, case of Re C (A Child) 2013. 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/431.html

This is a Court of Appeal decision which has hit some of the national press. It is the one where a father learns three years after the event that he has fathered a child, and worst still, learns that the child has been made the subject of a Care and Placement Order and placed with adopters.

 He sought to oppose the adoption order, and this was refused. What happened then, was that a Judge heard the application for adoption and made the order (knowing that there was a desire to appeal the decision refusing leave to oppose the adoption order, but it being uncertain as to when that would be).

  1. C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C’s mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.
  1. Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.
  1. The appellant had had a brief sexual relationship with C’s mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.
  1. In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority’s agreement to carry out a DNA paternity test.
  1. On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C’s father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking “permission to defend/oppose the adoption order” and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question “Does your application include any issues under the Human Rights Act 1998?” the answer given was “No”. Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C’s mother which set out her position very clearly: “I do not want my child … to be adopted by strangers … I wish to ask the court to place him with his natural father or allow his sister to adopt him”.

The Court made it plain that the Local Authority in the care proceedings, having been assured by mother throughout that the child’s father was a man “R” and that the true father had never come into the equation, were entitled to proceed on that basis and not have to try to investigate the true paternity. By the time the father came forward, the child had already been in the potential adoptive placement for two years and the application was lodged.

The Court of Appeal considered the case and concluded that the initial decision to refuse leave to oppose was correct, and certainly not plainly wrong.

  1. Before Judge Redgrave, the appellant had to clear two fences. First, he had to establish (as he did) the necessary change of circumstances referred to in section 47(7) of the 2002 Act; second, he then had to satisfy the court that, in the exercise of discretion, it would be right to grant permission: Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para [18]. In relation to the second, the question fell to be decided by the application of section 1 of the 2002 Act to the facts of the case, so the paramount consideration for the court was C’s welfare throughout his life: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069, paras [27], [55].
  1. At this stage a “stringent approach” was required: Re W, para [28], approving the approach adopted by McFarlane J, as he then was, in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para [15]. In Re W Thorpe LJ expressed it in this way (para [20]):

“I am in no doubt at all that where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family. Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had reacted to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity.”

That is, of course, a reference to what Lord Collins said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para [33].

  1. Ms Fottrell, for whose admirable submissions I am indebted, as is the appellant, distilled her submissions into seven propositions:

i) That Judge Redgrave failed to have due regard to the factors listed in section 1(4), and in particular section 1(4)(c) of the 2002 Act (“the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person”).

ii) That she failed to have due regard to section 1(4)(f) (“the relationship which the child has with relatives, and with any other person in relation to whom the court or agency continues the relationship to be relevant …”).

iii) That she failed to have due regard to the real possibility that C could be placed with relatives and that, considering the known strengths of the appellant and his sister as carers, the merits of his application should have been considered at a full hearing.

iv) That she was disproportionately influenced by the possibility of disruption to the placement, which was not the only consideration when assessing the welfare of the child, and was wrong to conclude and rely on the assertion that a further move would place C at risk of suffering further harm.

v) That she was wrong to conclude that it was implausible that the appellant did not suspect that he was the father of C, having not heard evidence from him.

vi) That she was wrong to conclude that his immigration status was in any way relevant to her analysis.

vii) That, having concluded that she could not assess the ability of the appellant to care for C but that she could not conclude he had no prospect of succeeding (there was a recent assessment of him as a co-carer for M and he was actively caring for a child at the time), she was wrong to conclude that he should not be granted leave to oppose the adoption.

  1. Ms Fottrell identifies the central question for us as being whether Judge Redgrave’s approach was too stringent. She submits that the judge’s approach was to assume that C’s welfare would be adversely affected by a purposeful delay and that too great weight was placed on the fact that C was in the adoptive placement at the time of the application. She supplements this with the additional submissions that Judge Redgrave erred in not considering whether the appellant’s application had ‘solidity’ and in giving insufficient weight to the merits of the appellant’s application to oppose, its prospect of success and the likely benefit to C of being placed with his biological family.
  1. Ms Fottrell also pointed out that, in distinction to both X and Y and Re W, the merits of the appellant’s case had never been considered by any court in the course of either the care or the placement proceedings.
  1. Ms Fottrell relied upon the protection afforded the appellant by Article 8, both in relation to his “private life” and also in relation to his “intended” or “potential” “family life” as expounded in Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, paras [60]-[62], Schneider v Germany (Application No 17080/07) (2011) 54 EHRR 407, paras [82]-[84], and, most recently, Kautzor v Germany (Application No 23338/09) [2012] 2 FLR 396, para [75].
  1. Mr Perkins on behalf of both the local authority and the adopters submitted that Judge Redgrave was invested with a discretion that she properly exercised, having regard to the section 1 criteria, in a way that sits comfortably with the current domestic and Strasbourg jurisprudence. Further, he said, even if, which he did not accept, she had included additional matters in her consideration (ie, the appellant’s immigration situation) which she perhaps should not have, her overall assessment and decision was not so plainly wrong as to enable us to interfere.
  1. For the purposes of the appeal, Mr Perkins was willing to assume that the appellant in combination with his sister could provide for C’s physical needs, and to a good standard. But, he submitted, sadly for them the combination of all the circumstances in this case falls well short of Thorpe LJ’s “solidity” test. What he called “the unchallengeable obstacles” are a combination of:

i) the fact that the appellant and his sister are strangers to C, now aged 4; not wishing to be unkind, the sad reality is that they have no relationship whatsoever with him;

ii) the fact that for the first three years of his life C was in foster care, so effectively he has had no experience of natural parental care;

iii) the fact that he has spent the last two years with his adoptive parents and has become settled and attached, no doubt secured by those around him in their expectation that this was to be his permanent home;

iv) the fact that, as the judiciary has already noted positively on a number of occasions, his adoptive placement more than adequately meets his needs, particularly for a placement within a culturally appropriate home; and

v) the risk that setting in train the process now being proposed by the appellant could seriously undermine C’s stability and strike hard against his best interests.

  1. Despite everything that Ms Fottrell has so attractively argued on his behalf, and recognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child, I was by the end of the argument on the point entirely satisfied that the appeal against Judge Redgrave’s order had to be dismissed. Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?
  1. In my judgment, Judge Redgrave’s decision as set out by her in a very clear and lucid judgment displays no error of law, no error of approach, whether viewed from a purely domestic perspective or, as one must, from the broader Strasbourg perspective. Nor can it be said that her exercise of discretion was flawed or that it was plainly wrong. In my judgment it was neither. Judge Redgrave addressed the relevant factors and gave them what she thought was the appropriate weight. That was a matter for her, and we cannot interfere unless she was plainly wrong, either in her evaluation of the weight to be attached to them, whether individually or collectively, or in her overall conclusion. She was not. Despite Ms Fottrell’s submissions to the contrary, I do not accept that Judge Redgrave failed to have due regard to, or, as the case may be, was unduly influenced by, the various factors to which Ms Fottrell has drawn our attention

They were not terribly happy that the second Judge, following that refusal of leave to oppose, and knowing that an appeal was being contemplated, went on to make the adoption order.  IF the father had won his appeal against refusal of leave to oppose, that decision to make the adoption order could have made matters very difficult indeed, as overturning an adoption order once made is not straightforward.

  1. The dismissal of the appeal against Judge Redgrave’s order renders academic the proposed appeal against Judge Altman’s subsequent order. I cannot pass it by in silence, however, not least because of the very serious implications if the appeal from Judge Redgrave’s order had in fact been allowed.
  1. It is quite clear that the appellant has locus – status – to appeal against the order made by Judge Altman even though he was not a party to the proceedings at the time it was made: Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [141]. The real question is whether his proposed appeal would have been successful.
  1. The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: Webster para [149]. In that case, the adoption orders “were made in good faith on the evidence then available” (para [177]) and therefore stood, even though the natural parents had suffered a “serious injustice” (para [148]). Webster can be contrasted with Re K (Adoption and Wardship) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (page 227) “inept handling by the county court of the entire adoption process” and (page 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application.” Butler-Sloss LJ held (page 228) that:

“there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

  1. Whether the appellant would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.
  1. In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.

The Court of Appeal (and this is the President of the Family Division, who is even now beavering away on the revised Public Law Outline) had this to add, about the case generally

I cannot part from this case without expressing my very great concerns about what it reveals of our system. The history of the events since 7 February 2012 as I have set them out makes for depressing and profoundly worrying reading. This is not, I stress, necessarily a criticism of those involved, most of whom did what was required of them; it is a criticism of a system whose inadequacies and potential for catastrophe have here been all too starkly exposed. No humanly devised system can ever be foolproof, but we must do everything to ensure as best we can that future catastrophes are prevented.

 

Where a challenge to the making of a Placement Order, or any order consequent to that, is being contemplated, the Court of Appeal say that the following steps MUST be taken  [and adds “when I say must, I mean MUST”]

  1. 48.   i) The appellant’s notice must be filed as soon as possible.

ii) Those advising the appellant must give careful thought to including in the appellant’s notice any appropriate application for a stay or other interim relief.

iii) If a transcript of the judgment being appealed against is not then available:

a) the appellant’s notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and

b) the transcript must be ordered immediately.

iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

a) the fact of the making of the application; and

b) the date(s) of any hearing of the application.

The President also indicated that steps are to be taken to deal with the particular logjam in this case, which was that the case could not be appealed until the transcript of judgment was available and that obtaining this transcript had taken many many months, thus preventing a Court of Appeal Judge looking at the appeal application at permission stage and giving directions (which might well have included that any application for adoption should be stayed until the appeal was determined).  None of that really helps, because in this case the LSC would not award funding for the appeal until THEY had seen the transcript, and understandably, counsel drafting the grounds of the appeal needed to see the transcript in order to provide the advice for the LSC that an appeal had a reasonable prospect of success.

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“It is not down on any map, true places never are”

Posted on April 8, 2013 by suesspiciousminds

The DFE Adoption maps and what we can learn from them, if anything

The DFE have published their adoption maps, whilst repeating over and over that these are not a  judgment on local authority performance. Much in the same way that listing all of the countries job centres in tabular form, with those who have achieved the highest number of stopping people’s benefits is not a league table, or an indication that stopping people’s benefits is considered to be a good thing.

 Anyway, I love maps, and I thought there were some interesting things to emerge from them. Plus, the chance for this title, which is probably my favourite line in all literature (it is from Moby Dick, and the nearest competitor is probably Hotspur’s rejoinder to Glendower’s  “I can call spirits from the vasty deep”   – “Why so can I, or so can any man. But do they come when you do call for them?” )

 

Also, it lets me make reference to another of my favourite passages, from The Hunting of the Snark

 He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.

 

 carroll-map-thumbnail

 

I’m not sure that the DFE maps constitute a map we can all understand, though there are some who would claim it has as much meaningful content as the map in Hunting of the Snark.  Certainly, if we apply the Bellman from Snark’s rationale that “What I tell you three times is true”  then it is not intended to be a comparison of Local Authority performances    *

 

[And for an excellent analysis of the “What I tell you three times is true” motif,  see this wonderful piece from Inky Fool  –  which tells you the derivation of that annoying habit people have of politely refusing something twice and then accepting it at the third time of asking. It all arose with a polite convention about what you are supposed to do if someone asks you to become a bishop. I wish that I had written it, but as I liked it so much, the least I can do is steer others towards it. If you are ever asked to become a bishop, now you know the polite convention

 

http://blog.inkyfool.com/2010/04/nolo-episcopari-and-rule-of-bellman.html  ]

 

Enough literature, on with the maps!

http://www.education.gov.uk/childrenandyoungpeople/families/adoption/a00219985

 

The main DFE caveat with the maps is that they only include figures for adopters approved by Local Authorities and none by any voluntary adoption agencies.  The main gripe from the Local Authorities is that looking at a map just tells you something bald, and you can’t compare, say Leicestershire and Liverpool without knowing something about the size of population and social problems that each might have.

 

Anyway,  there are several maps, but the one I was most interested in was Map B

http://media.education.gov.uk/assets/files/pdf/m/map%20b%20number%20of%20children%20waiting%20for%20each%20adopter.pdf

Map B does a clever little exercise – for each Local Authority, it takes all of the children in that area who are waiting to be adopted  (i.e where an Adoption Panel / Agency Decision Maker has considered that adoption is the plan and where a Court has made a Placement Order) and compared that to the number of adopters that that Local Authority has approved.

 In an ideal world, you would want 1 adoptive family approved for every child that you are looking to place   (maybe even ideally slightly higher than that, to give you some choice, though of course, some adopters are looking to adopt 2 children).

 

What it tells you is, notionally speaking, if a Local Authority decided that they were going to match every single adoptive family with a child on their books,  whether they would have adopters left over, or children left over. And how many.

 For children waiting to be adopted, this map is bad news. The lowest category, the darkest blue, is where there are 2 or fewer children waiting for each approved adopter.

 The highest category, the yellow, is where there are between 11 and 23 children waiting for each approved adopter.

 Now, whilst some adopters are prepared to adopt two children (and thus the navy blue Local Authorities might be able to clear their children waiting for adoption if they could theoretically match up all the children with all the adopters), there aren’t adopters waiting to adopt eleven or twenty three children.

 

Meaning that if one did that notional exercise, matching every adopter up with as many children as they were prepared to take, the yellow authorities would have barely put a dent in the children needing to be placed (maybe reducing the number of children waiting by 20%, maybe 10%, maybe even less)

 Green authorities have between 6 and 10 children waiting for each approved adopter.

 So, the more yellow and green authorities there are, the worse it is for children waiting to be adopted.

 How many dark blues are there?  I made it about fifty.

 And yellows? I made it about 13, with 19 greens.

 Bear in mind, that what often happens is that one local authority places children for adoption with adopters approved by another local authority. But you can see that even the best authorities don’t have adopters left over (compared to the number of children that need families) and that even spreading out the yellow and green authorities additional families across the country doesn’t solve the problem.

 Nationally, we have far more children needing to be adopted   (* Anticipating the comments, by which I mean children where a Court has heard evidence and argument and decided that adoption is the right plan for them) than there are people approved as adopters.

 Equally, you can see that whilst the Midlands is pretty evenly matched between children needing placements and placements available, the East of the country and the South/South East of the country is pretty bad, with there being no neighbouring counties to raid for adoptive placements, since they are all struggling to meet their own demands.

 It is a shame that the independent adoption agencies figures are not in there, it may well be that those figures would dramatically alter the position.

 It is a worry, however, that the demand for adoptive placements is substantially outstripping the supply of such placements. That leads to delay, of course, it leads to some children not being able to be found placements, and inevitably it needs to a situation where the chance to place difficult children (in large sibling groups, or with profound problems, or with a family background of mental health problems) becomes much harder.

 Perhaps the Government’s ambitious thinking that there are four million potential adopters out there and that more can be converted from potential to actual if the process is made less bureaucratic and terrifying is right, and that the problem can be addressed by better recruitment.

 [There’s a curious little spreadsheet tucked away with some hard data

 http://media.education.gov.uk/assets/files/xls/a/adoption%20scorecard%20underlying%20data.xls

 I liked looking at the average duration of care proceedings in each authority, given that we are told that 26 weeks will be coming in, and we have been ostensibly working on an average target of 40 weeks for  NINE YEARS now.  Yes, the Protocol, god rest its soul, would have been ten years old this November.

 I counted 11 of the 149 authorities that had an average duration of care proceedings of 40 weeks or under.

 Let’s look at 50 weeks – that being 25% longer than the current target.  I counted NINETY SIX authorities where the average duration of proceedings was 50 weeks or longer.  There were some, not many, but some, that were over 60 weeks  (i.e 50% longer than the current target)   – 18 in all.  

 So actually, there are MORE authorities going 50% OVER the current target than there are going UNDER the current target. After NINE YEARS of pressure to get the duration down to 40 weeks  ]

 

 [A completely irrelevant footnote – as a blogger, I have a spam filter, and I get the most extraordinary spam comments, most of which are thinly disguised links to fake sunglasses or handbags, some are extraordinary Williams Burroughs-esque stream of consciousness masquerading as genuine dialogue. Today, however, I got a spam link from someone purporting to be from a website named “Toddler-hitting.org”   which might really have missed its target audience completely. I did not follow it up, I don’t think its likely to be my cup of tea]

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“To lose on a case once in the Court of Appeal may be regarded as a misfortune, to lose three times on the same case looks like carelessness”

Posted on March 4, 2013 by suesspiciousminds

The misadventures of the LA in the case of Re B  (2012)  (the Slovakian grandmother case)

 This is indeed, the third time that the Court of Appeal have heard the case, and on each occasion, the LA have lost. They have had a steadily increased judicial kicking each time that they did so, and the Court of Appeal almost seem to be running the case management of the case. 

The latest instalment is here

 http://www.familylawweek.co.uk/site.aspx?i=ed111948

It involves a case where the LA had put forward a plan of adoption for children and rejected a grandmother, who was living in Slovakia. At the very first appeal hearing, the Court of Appeal determined that adoption was not the right plan for the children and that the children should be moved over to Slovakia, although that would require a transition and a build-up of contact.   

That was on 9th November 2011.

 The case came back to the Court of Appeal on 16th November, with the LA seeking amplification and also seeking to introduce some fresh evidence about grandmother (including an allegation that she had attended a meeting with the mother, posing as the mother’s interpreter)

The Court did not think that these fresh allegations were any impediment to the plan, and were gravely disappointed that the LA had not moved on with the transitional plan. They delivered a judicial ‘get on with it or we will take your ICO away from you and run things ourselves’ warning.

It was therefore pretty surprising that the case came back for a third time on 14th December, with the Court of Appeal being asked to decide between three plans for transition, and there having been no increase to contact since the Court of Appeal had decided that these children were going to move to Slovakia and live with the grandmother.

The Court were not best pleased that the LA had unilaterally decided that they weren’t going to implement the Court of Appeal’s decision.

The Court of Appeal expressed this fairly witheringly

3. The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.

4. The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered. The transition is now more difficult to manage and plan than it was on 16 November. A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

 

It emerged that the LA had been unhappy with the Court of Appeal decision and been taking advice about appealing it, and had decided that they wished to do so. They had taken the decision that increasing grandmother’s contact and building up the relationship might hamper their appeal and thus had not implemented a transitional plan as the Court of Appeal had asked them to do (and subsequently pressed them to do)

They had not, at the November hearings, sought leave to appeal, or a stay, or indicated that they were contemplating that course of action.

The Court was therefore given one plan of transition to grandmother’s care drawn up by those representing grandmother, one by the Slovakian authorities (who were obviously perplexed by the scale of the resistance to these children moving to their country) and one that had been drawn up by the LA  (obviously slowing the pace of transition to give them the chance to go and get their behinds kicked by a larger number of Judges in an altogether different building. Also see below for the timing of the creation of the plan)

 Always a risk in having three plans before a Court that they decide that none of them pass the Goldilocks test, and make their own, which will be ‘just right’ and that’s exactly what they did.

 

9. Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November. On that occasion we relied on the responsibility of the local authority. We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court. In that we have been disappointed.

The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.

 

10. How then should we be directive? If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova. But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11. Accordingly I would reject all three proposed transition plans. I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.

 

 

That pretty much settled that. The Court then considered whether this should be done under an Interim Care Order, or a Residence Order, with grandmother agreeing to the children being section 20 accommodated during the transition period. There was a two-to-one split on that, with the Court opting for a Residence Order and s20 consent.

 Leave to appeal was also refused, the LA were directed to get any formal application for appeal in by 19th December (I think 3 working days later) and the stay was refused.

 It would be fair to say that Mr Norton, representing the LA, whom I know and like, has had more successful days in his professional career.

 

14. It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose. If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division

 

This case does point up the difficulties in trying to get the Court of Appeal to case manage a case, the family were very lucky here that they were able to get hearings so quickly. It also shows that you defy the Court of Appeal at your peril, and that if you do intend to appeal a decision that they make and not begin implementing it, you had better put everyone on notice.

 It doesn’t seem that any applications for costs were made, but the need for the December hearing must have sailed pretty close to that point.  I don’t know if they lodged their appeal, they may have been tempted, given that they had three different Court of Appeal judgments to appeal against…

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Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

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Statutory orphans 2 (erm, “This time it’s practical”?)

Posted on January 24, 2013 by suesspiciousminds

 

The High Court have given some guidance [in A City Council v DC 2012]  on how to deal with applications by a Local Authority to revoke a Freeing Order when their plan is no longer adoption. I suggest that it may have implications for the large number of imminent-ish applications to revoke Placement Orders in similar circumstances.

 

That avalanche is hanging over us, just waiting for either the Minister to give a hearty shout or for the starting gun on adoption target timescales to be fired, and the whole lot will come down.

 

look out below

look out below

You may recall that Mr Justice Peter Jackson gave a scorching judgment castigating the LA and the Independent Reviewing Officer for leaving children in limbo and not making revocation applications where the Freeing Order was no longer being contemplated as a prelude to adoption.  

 

That was in Re A, S and Others v Lancashire 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html 

 

 

The blog on that is here:-

https://suesspiciousminds.com/2012/07/02/definition-of-chutzpah/

 

The case is A City Council v DC & Others 2012  and can be found here:-

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/8.html

 

There’s a curious esoteric debate about what happens when a Freeing Order is revoked, whether the Court should  revive the Care Order, or as suggested by the parents advocates, make an Interim Care Order and get stuck into a root and branch review of the new care plan. The Court decided that the former, as set out by lots of previous case law, is the correct approach.

  1. Mr. Nuvoloni on behalf of the father was in his written material understandably preoccupied with his lay client’s human rights. He ‘floated’ in his written submission an argument that the new s20(3)(iia) could, and should, be interpreted as permitting the court to make an interim rather than a full care order upon revocation of the freeing order. He submitted that to deny the parents the opportunity to challenge or scrutinise an up-to-date care plan, through the medium of an interim care order, would be accepting an interpretation that offends against the requirement of the Human Rights Act 1998 and in particular section 3 of the Human Rights Act 1998 which requires that primary legislation, in so far as is possible, is to be read and given effect in a way compatible with Convention rights.
  1. Mr Nuvoloni submited that the revival of a full care order would amount to a breach of Article 6 and 8 of the Human Rights Act of both the parent and child.
  1. In oral argument Mr Nuvoloni revised his position and accepted that the interpretation he proposed which would allow the court to make an interim care order with a view to scrutinising a new care plan, stretched the wording of the statute beyond breaking point. Further he accepted that if a procedure was adopted by the courts whereby the parents were given sufficient information to enable them to obtain legal advice and, if advised, thereafter to make an application for contact or the discharge of the care order, then their Article 6 and Article 8 rights as reinstated parents would be adequately protected.
  1. Mr Nuvoloni, in my judgment was wise to make the concessions he did and to concentrate, (as he has done most effectively), on how best the court should now proceed. From a statutory interpretation point of view, the section is, in my judgment capable of only one interpretation; the wording is to revive……any care order within the meaning of that act. The use of the word revive in the statute shows that what is intended is that the full care order (made immediately prior to the freeing order), is to be restored and accordingly a care order will be the order determining J’s legal status following the exercise of the court’s inherent jurisdiction to revoke the freeing order.
  1. Prior to a freeing order being made, it was necessary for the court to have made a full care order, there is therefore no other order that could be revived pursuant to s20(3)(b)(iia) other than the care order made immediately prior to the freeing order. The wording of the statute is unambiguous. It does not provide the court with any residual discretion; for example to replace the freeing order with such order as the court thinks fit having scrutinised a care plan or alternatively with an interim care order made earlier in the original care proceedings.
  1. I note that both Black J in Re J and Peter Jackson J in A and S children v Lancashire CC [2012] EWHC 1689 (Fam) (para 95) not only made full care orders upon the revocation of the freeing orders but that all parties in both cases accepted the interpretation of the Act which is now accepted on behalf of the father.
  1. The revival of a full care order is not in my judgment incompatible with either Article 6 or Article 8. The effect of section 20 AA 1976 as amended, not only revives the care order, but also reinstates parental responsibility to the former parents. Those parents, in the exercise of that parental responsibility, are thereafter entitled to make an application for contact or to seek the discharge of the care order (subject to the exceptions in the guidance referred to below). In the meantime the care order regularises the child’s legal position whilst recognising that the child is, and often has been for many years, ‘in the care’ of the local authority.
  1. A local authority seeking to regularise the legal position of statutory orders will, as a matter of course, have to file a statement in support of their application for the revocation of a freeing order. Such a statement will, of necessity, set out not only the history of the child since he or she was freed for adoption but also that child’s present circumstances; the statement will be served on the former parents who will be parties to the proceedings. It follows therefore that at an early stage in the proceedings (subject to the exceptions in paragraphs 42(ii) and 42(iii) of the guidance set out below) the parents will have an opportunity to make an application for either contact and or the discharge of the care order.

 

 

All of that is more law geeky than practical, but the parties asked the High Court for practical guidance on the procedure to be followed in these applications, and the High Court, in the form of Mrs Justice King duly obliged.

 

  1. I am grateful for the assistance given by Counsel and to the local authority solicitor in this case in putting together this procedural guidance which has been approved by the Acting President Mr Justice Holman.

A: ISSUE & APPLICATION

i) The general rule is that any application by a local authority asking the court to exercise its inherent jurisdiction in order to revoke a freeing order should be made in the High Court on notice to the former parents including those former parents who have made a declaration under s18(6) of the Adoption Act 1976.

ii) Exceptionally an application may be made without notice (and in such circumstances the remainder of this guidance shall be departed from as appropriate). When making such an application the local authority must file a statement in support giving reasons for seeking a without notice order by reference inter alia to the principles in KY v DD [2011] EWHC 1277 (Fam) (a wardship case) where Theis J, (giving guidance endorsed by the President of the Family Division), re-emphasised the established principles in relation to without notice applications as set out in Re W (ex parte orders) [2000] 2 FLR 927; Re S (ex parte orders) [2001] 1 FLR 308; B Borough Council v S and anor [2006] EWHC 2584 (Fam),

iii) Similarly any application to withhold any of the information, which would otherwise be included within the application as set out below, must be made subject to the principles set out by the Supreme Court in Re A (A Child) [2012] UKSC 60 and be accompanied by a statement in support of the application.

iv) Good practice would require that, if they can be traced, the former parents should be told of the forthcoming application face to face by a social worker and be given some sort of explanatory note to help them to understand the nature of the application, which note will thereafter be of assistance to them in obtaining legal advice and public funding.

v) The application should be made using Form C66 and the requirements for a copy of the child’s birth certificate and or a copy of the entry into the Adopted Children Register should be dispensed with, (if necessary by order made at the first hearing).

vi) The following documents should be filed in support of the application and served, together with the application on the former parents: [Permission for the disclosure of those documents which were generated in the earlier care proceedings should be sought from the trial judge (or local Designated Family Judge if the trial judge is unavailable), prior to issuing the application in order to ensure that service of all documents takes place at one time]

a) Copies of the care order and freeing order

b) A transcription or note of judgment from the previous care proceedings

c) The final care plan from the care proceedings

d) A short neutral chronology covering significant events prior to the child’s admission to care and significant events following the making of the freeing order

e) The children’s guardian’s final report from the care proceedings

f) The Looked After Child (LAC) review minutes, usually for the last two years preceding the making of the application, but in any event to include the LAC review where the local authority made its decision to change its care plan from one of adoption.

g) An updated care plan

h) A statement by the allocated social worker or other appropriate person which should include the following information:

i) The child’s social history including details of any placement breakdown, all placement moves and of any ongoing contact whether with the former parents or either of them or with siblings;

ii) Any evidence of the child’s wishes and feelings of which the social worker/carers are aware; [there should ordinarily be no direct discussion with the child(ren) about the consequences of revocation, including any attempts made to seek to ascertain their wishes in relation to contact prior to the first directions hearing].

iii) Any evidence of the wishes and feelings of the former parents if known.

iv) Details of the involvement of external agencies including therapy providers, police and other local authorities

B: FIRST HEARING/ DIRECTIONS:

(1) The application shall be listed for Directions before a High Court Judge or before a Circuit Judge sitting as a High Court Judge sitting pursuant to section 9 of the Supreme Court Act 1981. It may be that the Family Division Liaison Judge for each circuit may wish to create a list of Circuit judges approved to deal with such applications in order to avoid delay in the allocation and hearing of the cases.

(2) At the first directions hearing:

(a) The court will decide the preliminary issue as to whether it is in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents. It is envisaged that by the very nature of the application in most, if not all cases, it will be appropriate formally to revoke the freeing order at this hearing. If for any reason the freeing order is not revoked at this stage it should be relisted for determination as soon as practicable.

(b) The making of the order revoking the freeing order will:

i) Revive the original care order

ii) Revive the appointment of any testamentary guardian

iii) Give parental responsibility to the mother

iv where appropriate, in accordance with the relevant statutory provisions, give parental responsibility to the father.

(c) Upon the revocation of the freeing order, the care order having been revived and parental responsibility having been reinstated, the court should give directions for the future management of the case:

i) Consideration should be made as to whether the court should make an order authorising the local authority to refuse contact between the child and the parents

ii) The court should make directions requiring the parents to make any application to discharge the care order/apply for a contact order within 56 days (or such other period as may be specified by the court)

iii) The court should include a request that in the event that the parents, or either of them, issue an application that the original children’s guardian should, if possible, be appointed to represent the child(ren) and all the documentation filed should forthwith be served upon the original or newly appointed children’s guardian.

iv) The court should consider whether any other party to the previous proceedings should be served with notice of the proceedings and, if so, what if any documents should be served.

v) The court should list a further directions hearing at which directions will be given consequent upon any application for discharge of the care order/application for a contact order made pursuant to the direction made at para 2(c)(ii) above

vi) In the event that no application has been made by either parent or any party served under the direction at para 2(c)(iii) (and the court is satisfied that it is appropriate to do so), the court will ordinarily conclude the proceedings by continuing the s34(4) CA 1989 order where appropriate and making any appropriate order for costs.

 

 

 

Stripping out all of the references to the High Court, I would suggest that most of this is going to be applicable to the many applications for revocations of Placement Orders that are forthcoming.

 

 

[If you aren’t aware of this budding avalanche and the reasons for it, it is essentially this: –

 

where an LA applied for a Placement Order and obtained one, but haven’t been able to get an adoptive placement and have since stopped looking, there’s a triple pressure to make applications to revoke such Placement Orders :-

 

  1. The fear that the human rights claims in Re A, S and Others v Lancashire might be broadened beyond Freeing Orders and into Placement Orders.
  2. The murmurings from Ministers that they will be expecting LAs to clear the decks of all such cases, so that there is proper information on which children subject to Placement Orders are actively waiting for placements, rather than the waters being muddied with children subject to Placement Orders where nobody is searching for a placement any longer.
  3. The desire of the LA’s for the same reason, to want to clear the decks so that the figures on ‘average wait for adoptive placement’ is not skewed by children who have been subject to Placement Orders for two years or more when the search has been given up  

 

 

The reason this avalanche has not yet translated into court applications is because nobody really knows whether this will just be a simple standalone “is there a need for the Placement Order to continue if no adoptive placement is being sought?”  case, or whether it will be a reopening of the entire case, fresh assessments of parents, challenges to care plans, contact.  If the former, making the applications will be simple and straightforward, if the latter, issuing them will be like pushing many many new sets of care proceedings into an already overloaded system.

 

 

And yes, there are decent arguments that where a parent believed their child would be adopted and the search has been given up, that this should be back before the Court with ‘all to play for’               ]

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