Category Archives: children and families act 2014

President’s judgment Re S (26 week and time extensions) Part One

Posted on April 17, 2014 by suesspiciousminds

This has come my way but is not yet on Bailii – so blog on it to follow, but first things first, the judgment, which the President himself has circulated to interested persons (I’ve put it on here in full, as it is going to impact on all cases from our next working day)

Case No: DO13C00782

IN THE BOURNEMOUTH AND POOLE COUNTY COURT

(In Private)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16 April 2014

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of S (A Child)

– – – – – – – – – – – – – – – – – – – – –

Mr Anthony Hand (instructed byTanya Hall, Bournemouth Borough Council legal services) for the local authority

Mr Andy Pitt (of Aldridge Brownlee Solicitors LLP) for the mother

Ms Nicola Preston (of Dutton Gregory) for the father

Mr Steven Howard (instructed by Pengillys) for the children’s guardian

Hearing date: 25 March 2014

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

………………………..

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Sir James Munby, President of the Family Division :

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case but, as it happens, it raises a point on which it is desirable that I should give a judgment directed to a wider audience.

The background facts

S, the child with whom I am concerned, was born in October 2013. She is the youngest of her mother’s four children. The three older children have all been taken into care. The mother, as is common ground, has a history of street prostitution and drug taking. Her third child was born with drug withdrawal symptoms.
The proceedings in relation to S began in October 2013. An emergency protection order was granted on 21 October 2013, followed by an interim care order on 28 October 2013. The case was transferred to the County Court. It came before His Honour Judge Bond on 14 January 2014 for a further case management hearing. There was a formal application by the local authority for permission to instruct an expert, a psychiatrist, and an informal application by the mother for an assessment in accordance with section 38(6) of the Children Act 1989. Amongst the papers before Judge Bond was a parenting assessment by the local authority dated 20 December 2013, a further report from the local authority dated 6 January 2014, and reports dated 3, 4 and 30 December 2013 from Dr Menzies Schrader, a specialist psychiatrist with the local Mental Health Team who had been treating the mother. Judge Bond directed the filing by 14 February 2014 of a report by a consultant forensic psychiatrist, Dr Jane Ewbank. He adjourned the mother’s application pending receipt of Dr Ewbank’s report.
The mother’s adjourned application came before me on 25 March 2014. By then Dr Ewbank had reported. Her report is dated 18 February 2014. Mr Andy Pitt on behalf of the mother renewed her application for an assessment under section 38(6). As refined before me, the proposal was that I should direct a residential assessment of S and her mother at Orchard House, a Family Assessment and Intervention Centre in Taunton, initially for a weekend and, if that proved successful, for a period of between six and twelve weeks. This residential assessment might then (see below) be followed by a further period of assessment in the community. The application was opposed both by Mr Anthony Hand on behalf of the local authority and by Mr Steven Howard appearing for S’s guardian, as well as by Ms Nicola Preston representing S’s father. There were reports from Orchard House dated 15 December 2013 and 20 March 2014 setting out what they could offer. There was also a report dated 20 March 2014 from the Dorset Working Women’s Project, a sexual health project working with women who sell sex, particularly those who misuse drugs and/or alcohol.
I also had the results of various hair-strand drug tests which the mother had recently undergone. These results were not easy to interpret, though they showed at worst very low levels of drugs in the mother’s hair. Mr Pitt did not invite me to hear evidence from the mother, so on this point I cannot come to any conclusion. Nor do I express any views. There is in the event no need for me to do so. I am content for present purposes to proceed on the assumption, though without deciding, that the mother was ‘clean’ during the periods covered by the tests.
Having reflected on the matter overnight, I informed the parties the following day that I had decided, for reasons which would be given in due course in a written judgment, to refuse the application. It was accordingly dismissed.

The mother’s problems

There are various strands to the mother’s problems. For present purposes they can be summarised as follows. The mother is a vulnerable woman who struggles to care for herself. She has mental health problems, an anxiety disorder (exemplified by fears of travelling on public transport and at times elective mutism) with intermittent depressive episodes and borderline low IQ. She has a long history of polysubstance drug misuse and street prostitution.
In relation to this, Mr Howard took me to the notes of the mother’s supervised contact sessions with S. Two themes emerge. The first relates to the mother’s personal appearance and presentation. There is frequent reference to the mother arriving for contact unkempt, with dirty clothes and smelling of tobacco smoke and unpleasant body odour. She is recorded as being shaky, swaying and shuffling (though apparently not smelling of alcohol). The relevance of this, I assume, is that the mother’s inability to look after herself throws light on her ability to look after S. More important are the recordings of the interaction between S and her mother. There is quite frequent reference to the fact that S rarely makes eye contact with her mother but does with the workers, that the mother “has her vacant expression throughout contact” – what on one occasion is described as her “dreamy frozen stare” – and that there is very little interaction between S and her mother. The note of contact on 3 March 2014 comments that S “does not get much stimulation during her contacts.” The note of contact the following day records that when her foster carer arrived to collect her, S was “very happy and smiled at the foster carer.” The comment is added that “S is a very different child when she is with the foster carer S is a happy laughing child.”

The expert evidence

The local authority’s parenting assessment dated 20 December 2013 contains an analysis of which the following are the most significant passages:

“[A report] evidenced some positives in the basic case of S provided by [the mother] during the parenting assessment sessions. [She] has also evidenced a high level of motivation during the assessment, and has engaged to a high level

[She] has remained stable on her methadone prescription as proven by her hair strand test. This is a positive step forward and indicates a desire and ability to remain clean even at times of stress such as current proceedings

…

The child protection risks are of concern and there are still considerable risks potentially posed to S.

However [the mother] has showed some positive insight into parenting and has showed potential for further growth and change.

[Her] mental health difficulties are complex and difficult to understand and I feel we require in depth support from her mental health professionals, to ascertain if there is further support that could be provided with regards to her mental health that may improve [her] position as good parent.

There is a possibility that a short term mother and baby placement tailored to [her] additional needs may be appropriate dependent on other professionals reports and professional opinions. This would be to further determine if she can parent in the whole when responsible for her child, or whether or not, she can merely manage basic parenting in a controlled environment such as FRC for 1½ hours.

It should be noted that since completion of the report, I have had access to case recordings from recent contacts from the start of December and there has been deterioration in [her] parenting skills and presentation.

There have been concerns raised by the contact worker regarding her physical support of S, her hygiene and nappy changing. It is unclear why this change in [her] skills has changed.

[She] has also expressed to contact workers she is experiencing panic attacks and cannot cope with the short journey by taxi to FRC. This contradicts the information she provided to me, and is concerning she is mentioning this now the assessment is complete.

The fundamental concern this raises is that since completion of the parenting assessment, [she] has been unable to sustain the level of parenting she previously was providing S. This could be due to instability in her mental health or an inability to maintain good level of parenting.

S requires a safe, nurturing and consistent upbringing to ensure she has the best possible opportunity for a health and happy life.

If [the mother] is unable to provide this in the confines of the FRC, it is questionable whether or not she could long term.”

The further report dated 6 January 2014, which records a visit to the mother’s home on 4 December 2013, contains this comment:

“It was very evident during my visit that [the mother] is fully dependent on her sister … to fulfil her day to day needs which concerns me in respect of [her] ability to parent S independently.”

The mother’s key worker at the Dorset Working Women’s Project describes working with the mother from 2001 until 2008, when “she appeared to have settled down and was stable.” She next saw the mother in December 2012, describing her then as being “clearly mentally unwell and extremely vulnerable.” She continues:

“[She] appeared to be making progress until she was befriended by a known perpetrator who has a history of violence and abuse towards vulnerable women … Unfortunately once the relationship began [he] had complete control over [her] … and she appeared to be working more.”

That man is S’s father. He has been in prison again since July 2013. Of the mother’s subsequent re-engagement with the Project and more recent presentation the key worker says that the mother’s presentation has “improved greatly” and that she “continues to make good progress”.

Dr Schrader was supportive of a residential assessment to assess the mother’s parenting abilities. In his report dated 30 December 2013 he said that “Her presentation currently is vastly improved from how she presented in 2012 and in January of this year and I believe is primarily as she is having input and been abstinent from substances. This is the first time she has engaged to this extent”. On the other hand, he noted that she “continues to have difficulties with anxiety” and described her as “a complex lady who desperately would like to raise her daughter, but who has numerous issues which could impede this process.” He added, “Improvement in these areas of difficulty is going to take time.”
Dr Ewbank accepted that the mother “appears to be demonstrating an increased capacity to engage in treatment with both the drug services and the CMHT”. Commenting that “Historically she has been a very poor engager, missing multiple mental health appointments and repeatedly disengaging from drugs services either by not attending or by using illicit drugs on top of her Methadone prescription,” Dr Ewbank continued, “There does appear to be evidence over recent months of sustained engagement with both services and she has clearly benefited from the support of … the Dorset Working Women’s Project.” Asked to indicate the prognosis for change, Dr Ewbank said:

“Given [her] long standing drug problems, dating back almost 20 years, it is likely that achieving and sustaining first stability and subsequently abstinence from illicit drugs may take some time and is likely to require on-going treatment and support for many years.”

She added, “there is still a very real risk that she may resort to buying other medication to help her sleep … and thus exacerbate her problems again.”

Orchard House

Having reviewed the papers in the case, Dr Freda Gardner, a consultant clinical psychologist and the clinical director of Orchard House, expressed the view in her report dated 15 December 2013 that a residential assessment was appropriate and indicated. She described the regime:

“The high level of monitoring, 24-hours a day, afforded by a residential assessment would allow a thorough assessment of parenting to be undertaken whilst concurrently ensuring the safeguarding of S. This would include [the mother’s] parenting ability, and capacity for further change, and a consistent period of assessment regarding her current drug use.”

She continued:

“During assessment at Orchard House [she] would be provided with a tailored package of support and intervention to develop her capacity / potential capacity to meet the full range of S’s needs, including ‘Keep Safe’ work around prostitution, appropriate adults, and ongoing drug use.

The Social Work led Assessment Team and the Family Support Workers at Orchard House are highly experienced in working with a wide range of parents, and benefit from full integration of Clinical Psychologists experienced in a wide range of clinical presentations including personality disorder presentations and selective mutism. The staff support parents in developing skills and provide immediate verbal feedback, as well as written / pictorial feedback to improve parenting skills, which are based on research evidence. All staff at Orchard House aim to ensure that each family receives appropriate and consistent information The staff use a variety of techniques and specialist materials designed to help parents learn new skills, which may include formal instruction, modeling, breaking tasks down into small chunks, and giving lots of opportunities for rehearsal and repetition.

…

I am aware that any assessment will need to be within S’s timescales, and would therefore recommend that the residential assessment be kept as brief as possible, with regular reviews held to ensure the progression of the assessment. Typically, residential assessments are 6-12 weeks in length, though this depends on the specific needs of the family and the key issues of the assessment. Following a successful period of residential assessment, it may be appropriate for the assessment to move to the community or to the Orchard House community base. Orchard House are able and willing to provide carefully considered plans for transition.”

In her further report dated 20 March 2014 Dr Gardner confirmed her opinion that Dr Ewbank’s report did not change her view.

Section 38(6) – the legal framework

Section 38(6) of the Children Act 1989 provides so far as material that:

“Where the court makes an interim care order … , it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …”

The meaning of this provision is authoritatively explained by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, [1997] 1 FLR 1, and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576, [2006] 1 FLR 601. It suffices for present purposes to cite two brief passages from the speech of Baroness Hale of Richmond in In re G. In the first (para 69) she said:

“In short, what is directed under section 38(6) must clearly be an examination or assessment of the child, including where appropriate her relationship with her parents, the risk that her parents may present to her, and the ways in which those risks may be avoided or managed, all with a view to enabling the court to make the decisions which it has to make under the Act with the minimum of delay. Any services which are provided for the child and his family must be ancillary to that end. They must not be an end in themselves.”

Referring to the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719, the precursor to the revised Public Law Outline (PLO), due to come into force in its final form later this month, she added (para 71):

“if the aims of the protocol are to be realised, it will always be necessary to think early and clearly about what assessments are indeed necessary to decide the case. In many cases, the local authority should be able to make its own core assessment and the child’s guardian to make an independent assessment in the interests of the child. Further or other assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring.”

I draw attention to Lady Hale’s use of the word “necessary”.

Two other authorities cited to me require brief mention. In Re J (Residential Assessment: Rights of Audience) [2009] EWCA Civ 1210, [2010] 1 FLR 1290, para 10, Wall LJ, as he then was, said:

“I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother’s right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question?”

Referring to this in Re T (Residential Parenting Assessment) [2011] EWCA Civ 812, [2012] 2 FLR 308, para 93, Black LJ rejected the proposition that “a parent facing the permanent removal of their child has a right in all cases to an assessment of their choice rather than one carried out or commissioned by the local authority.” She continued:

“Still less is there a principle such as that for which [counsel] contends, namely that parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made’.”

Sir Nicholas Wall P, para 53, identified the “critical questions” as being:

“(1) does this child’s welfare warrant an assessment under section 38(6) of the Act? And (2) in looking at the timetable for the child, is there evidence that this mother will be able to care adequately for the child within the child’s timetable?”

Later this month, the amendments to section 38 of the 1989 Act effected by the Children and Families Act 2014 will be brought into force. Sections 38(7A) and (7B), inserted by section 13(11) of the 2014 Act, provide as follows:

“(7A) A direction under subsection (6) to the effect that there is to be a medical or psychiatric examination or other assessment of the child may be given only if the court is of the opinion that the examination or other assessment is necessary to assist the court to resolve the proceedings justly.

(7B) When deciding whether to give a direction under subsection (6) to that effect the court is to have regard in particular to –

(a) any impact which any examination or other assessment would be likely to have on the welfare of the child, and any other impact which giving the direction would be likely to have on the welfare of the child,

(b) the issues with which the examination or other assessment would assist the court,

(d) the evidence otherwise available,

(e) the impact which the direction would be likely to have on the timetable, duration and conduct of the proceedings,

(f) the cost of the examination or other assessment, and

(g) any matters prescribed by Family Procedure Rules.”

The language of section 38(7A) replicates, in all material respects verbatim, the more general provision in section 13(6) of the 2014 Act which applies to the calling of expert evidence (and which in turn replicates, with the addition of the word “justly”, the language of FPR 25.1). Likewise, the language of section 38(7B) is very similar to that of section 13(7) of the 2014 Act.
For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

The wider context

By the time the case came before me on 25 March 2014, the proceedings had already been on foot for a little over five months. What was being proposed by Orchard House envisaged a process that might extend the proceedings well beyond six months, indeed possibly for as long as eight months or even longer. This requires consideration of the principle set out in the interim PLO – which applies to this case – and shortly to be reinforced by section 14 of the 2014 Act.
Section 14 of the 2014 Act amends section 32 of the Children Act 1989 so that from later this month section 32 will in material part read as follows:

“(1) A court hearing an application for an order under this Part shall …

(a) draw up a timetable with a view to disposing of the application –

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with the day on which the application was issued; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

…

(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

…

(10) Rules of court may provide that a court –

(a) when deciding whether to exercise the power under subsection (5), or

(b) when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules, or must take account of any guidance set out in the rules.”

No rules have been made pursuant to section 32(10) and none are proposed to be made for the time being.

Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

What then of the qualification in section 32(5)?
In In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, paras 32-46, the Court of Appeal spelt out the essentials which the law and good practice demand in all cases when the court is being asked to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. Giving the judgment of the court, I said this (para 49):

“We do not envisage that proper compliance with what we are demanding, which may well impose a more onerous burden on practitioners and judges, will conflict with the requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption.”

I continued:

“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”

That approach, which is entirely compatible with the requirements of section 32, applies not just in the particular context under consideration in In re B-S but more generally.
In my seventh ‘View’, [2013] Fam Law 1394, I described the remarkable work being done by the Family Drug and Alcohol Court (FDAC) under the inspirational leadership of District Judge (Magistrates’ Court) Nicholas Crichton. I touched on the question of how the FDAC model was to meet the challenge of the 26 week time limit and fit with the PLO. I said:

“ … we must see how best the PLO can accommodate the FDAC model (I put it this way, rather than the other way round). We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”

More recently, in Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), para 40, Pauffley J has expressed the point in words which I cannot improve upon and which I wholeheartedly endorse:

“Justice must never be sacrificed upon the altar of speed.”

So despite the imperative demand of section 32(1)(a)(ii), there can be exceptions. But before going further it is vital to recall the equally imperative language of sections 32(5) and 32(7). An extension beyond 26 weeks is to be permitted only if it is “necessary to enable the court to resolve the proceedings justly”. This is precisely the same language as appears in section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act, so it must mean the same. Specifically, the learning in Re TG and in In re H-L must, in my judgment, apply as much to section 32(5) of the 1989 Act as it does to section 38(7A) of the 1989 Act and section 13(6) of the 2014 Act. Moreover, extensions are “not to be granted routinely” and require “specific justification.”
In what circumstances may the qualification in section 32(5) apply?
This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate.
There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.
I referred above to FDAC type cases. I have in mind cases of the type that might benefit from what I will call the FDAC approach. The approach (see the description in my seventh View, [2013] Fam Law 1394) is based on problem solving by a specialist, multi-disciplinary team supporting the parents in overcoming their problems where children have been put at risk, for example by parental substance misuse. The aim is to help to keep the family together, where possible. The team formulates an intervention plan to test whether the parents can overcome their problems and meet their child’s needs within the child’s timescale. Expectations are clear. The progress made by the parents is monitored regularly. If the parents cannot maintain the necessary progress the process is brought to an end.
Originally, the FDAC approach was pioneered in the FDAC court created by DJ(MC) Crichton at Wells Street in London. Another FDAC is now running at Gloucester and others are planned elsewhere. But the FDAC approach does not necessarily require a FDAC. Similar principles are being applied, for example, in Plymouth, pre-proceedings in a community based model pioneered by Bath and North East Somerset Council, in Liverpool by the use of a pre-proceedings protocol and in a small number of specialist domestic abuse survivors’ projects. No doubt other models will emerge. Typically, a multi-disciplinary team approach is agreed with the designated family judge or judge in charge of the specialist court, so that the support network and assessment team are available and funded in accordance with an agreed model. Decisions in principle about the capability of the parents to care for their child are usually made within 26 weeks, leaving such longer implementation as may be within the child’s timescale to be achieved within an extended timetable for the proceedings.
The FDAC approach is crucially important. The simple reality is that FDAC works. DJ(MC) Crichton has shown what can be achieved for children and their parents even in the most unpromising circumstances. FDAC is, it must be, a vital component in the new Family Court.
Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale?

Discussion

On behalf of the mother, Mr Pitt submits that she has complied with everything asked of her, is no longer taking drugs, has made progress in relation to her mental health – she is now talking freely – and continues to engage with the agencies and professionals who are in place to support and assist her.
Mr Hand on behalf of the local authority accepts that, to her credit, the mother has been making improvements. But, he submits, she has a long way to go. There is, he says, no realistic way in which she could care, or be supported long term to care, for S. Given the range of expert material already before the court, further assessment will not, he submits, assist the court in discharging its responsibilities. The combined effect of all the material is, he says, that the mother will not be able to care for S long term. Moreover, given the poor quality of the mother’s contact with S he questions whether it is compatible with S’s welfare to expose her to a residential assessment with the mother in the absence of it having a good chance of success. On top of all that, he questions whether the inevitable delay can be justified unless there is a good chance of success.
Mr Howard, for S, makes much the same points as Mr Hand. While the mother has made improvements they are insufficient and too late to indicate that she would be able to care for S within the child’s timescale. The assessment is not necessary. The guardian, moreover, is particularly concerned about the impact on S of the proposed assessment. The mother’s parenting of S during the assessment could undermine the secure attachment S currently has. Given the extensive assessments already undertaken, the mother’s poor prospects of success do not justify the “experiment” she is proposing, nor is it within the child’s timescale.
After careful reflection I concluded that Mr Hand and Mr Howard were right, and essentially for the reasons they gave. I can summarise my conclusions quite shortly.
In the first place I agree with them that the proposed assessment is not necessary, either in the sense described by Lady Hale in In re G or in the sense (the same sense) in which the word is used in FPR 25.1 and in section 38(7A) of the 1989 Act. There are two aspects to this. Further assessment is not going to add significantly to what the court already knows. Moreover, the kind of assessment proposed by Orchard House, although it may tell us something about the mother’s ability to parent S in a practical sense (though nothing important we do not already know) is not going to be able to tell us very much about the mother’s ability to address her many other difficulties, let alone her ability to sustain in the long term in the community whatever improvements may be noted in the short term in the supportive and controlled environment of Orchard House.
Secondly, there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

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Posted in case law, children and families act 2014, timescales. Bookmark the permalink.

Foster to adopt

Posted on March 21, 2014 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Children and Families Act 2014

2 Placement of looked after children with prospective adopters

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

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

(3) After subsection (9) insert—

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

(a) are considering adoption for C, or

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

(9B) Where this subsection applies—

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

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

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

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

That’s rather a mouthful, but in essence

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

That seems to me to be two separate circumstances

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

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

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

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

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

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

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

HOWEVER

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

Two distinct limbs of the test there

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

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

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

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

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

The usual test

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

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

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

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

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

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

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

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

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

(9B) Where this subsection applies—

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

What those cover are :-

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

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

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

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

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

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

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

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

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

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

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

S15 Children and Families Act 2014

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

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

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

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

plan, subject to section 34(11).

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

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

(b) adoption;

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

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

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

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

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The Staying put arrangements (and a toast to not being a moaning minnie)

Posted on March 21, 2014 by suesspiciousminds

The more I look at the Children and Families Act 2014, the more I seem to be complaining about (I have a long piece on s2’s foster-to-adopt provisions coming a bit later), and sometimes I think that writing my blog pieces I am just complaining about everything and generally being a moaning minnie.

Well, it took a while, but I found two provisions in the new Act that I do like, and don’t want to complain about. One is the inclusion of Young Carers into s17 assessment of need and provision of services, which I think is long overdue and a damn fine thing.

And the other is the “Staying put arrangements” which enables a young person if they and their foster carer are up for it, to stay in the foster placement until the young person is 21.

[I know that campaigners want this extended to children in residential care, and maybe that will come in the future]

I think it is a good thing that young people will have this option – it won’t be forced on them or pushed on them, but it is a bit of a safety net from the State, and I commend it to the House (sorry, went off on a delusion of being Chancellor of the Exchequer then)

Not only is the central idea good, I think the drafting is pretty decent. It is understandable, does what it needs to, doesn’t end up with any weird gaps or new concepts that don’t get defined properly (cough, section 2, cough)

I think there are some details to be thrashed out on the logistical side of things (how much do the foster carers get paid, is that a sum of money they have to pay tax on? Are they in effect landlords to that young person?) but the core of it is there, and I have nothing to moan about.

[Well, maybe I don’t like that the Children Act is now up to a section 23CZA (2) (b) – that’s more nesting than those glass tables people used to have in the Seventies, section 23 currently runs to 10 pages, but where else could you put it?]

Staying put arrangements

98 Arrangements for living with former foster parents after reaching adulthood

(1) The Children Act 1989 is amended as follows.

(2) After section 23C (continuing functions in respect of former relevant children)

insert—

“23CZA Arrangements for certain former relevant children to continue to live with former foster parents

(1) Each local authority in England have the duties provided for in subsection (3) in relation to a staying put arrangement.

(2) A “staying put arrangement” is an arrangement under which—

(a) a person who is a former relevant child by virtue of section

23C(1)(b), and

(b) a person (a “former foster parent”) who was the former relevant child’s local authority foster parent immediately before the former relevant child ceased to be looked after by the local authority, continue to live together after the former relevant child has ceased to be looked after.

(3) It is the duty of the local authority (in discharging the duties in section 23C(3) and by other means)—

(a) to monitor the staying put arrangement, and

(b) to provide advice, assistance and support to the former relevant child and the former foster parent with a view to maintaining the staying put arrangement.

(4) Support provided to the former foster parent under subsection (3)(b) must include financial support.

(5) Subsection (3)(b) does not apply if the local authority consider that the staying put arrangement is not consistent with the welfare of the former relevant child.

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

Posted on March 18, 2014 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Obtaining a fresh assessment late in proceedings

Posted on March 17, 2014 by suesspiciousminds

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

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

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

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

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

Ah, now you want to know more…

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

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

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

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

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

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

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

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

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

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

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

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

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

Unhelpfully

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

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

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

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

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

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

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

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

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

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

Assessment of paternal grandmother next

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

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

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

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

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

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

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

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

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

2 Comments

Posted in adoption, assessment of risk, case law, children and families act 2014, experts, timescales and tagged flaws in social work assessment, isw assessment, lac reviews, minutes of lac reviews, re z (independent social work assessment) 2014, re z 2014. Bookmark the permalink.

Legal aid for section 51 applications – contact post adoption

Posted on March 17, 2014 by suesspiciousminds

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

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

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

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

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

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

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

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

Offenders Act 2012 (civil legal services)—

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

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

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

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

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

paragraph (f) insert—

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

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

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

Under LASPO, there are two distinct categories

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

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

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

9 General cases

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

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

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

10 Exceptional cases

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

(2)This subsection is satisfied where the Director—

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

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

(and has not withdrawn either determination).

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

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

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

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

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

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

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

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

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

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

Paragraph 12

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

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

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

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

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

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

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

The other category is

Paragraph 13

Protection of children and family matters

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

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

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

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

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

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

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

22 Comments

Posted in adoption, children and families act 2014, contact, costs and tagged can I get legal aid to apply for contact, can i get legal aid to apply for post adoption contact, laspo, legal aid agency, post-adoption contact, public funding, section 51A application for contact. Bookmark the permalink.

Applying for contact AFTER a child is adopted

Posted on March 16, 2014 by suesspiciousminds

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

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

Click to access ukpga_20140006_en.pdf

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

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

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

9 Contact: post-adoption

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

“Post-adoption contact

51A Post-adoption contact

(1) This section applies where—

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

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

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

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

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

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

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

half-blood), marriage or civilpartnership;

(b) any former guardian of the child;

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

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

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

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

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

(b) the child, or

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

must consider—

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

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

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

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

(i) the child, or

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

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

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

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

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

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

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

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

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

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

So my question really is

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

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

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

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

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

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

Two problems with this

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

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

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

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

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

ADDENDUM EDIT

I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.

But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)

For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.

For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.

As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.
 

25 Comments

Posted in adoption, children and families act 2014, contact and tagged adoption orders, application for leave, contact, post-adoption contact, s51 Children and Families Act 2014, s51 contact applications, section 91(14) orders, vexatious litigants. Bookmark the permalink.

suesspiciousminds

Category Archives: children and families act 2014

President’s judgment Re S (26 week and time extensions) Part One

Foster to adopt

The Staying put arrangements (and a toast to not being a moaning minnie)

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

Legal aid for section 51 applications – contact post adoption

Applying for contact AFTER a child is adopted

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