Category Archives: judicial spanking

Leave to oppose adoption test – the new test

Posted on May 2, 2023 by suesspiciousminds

The last time the Court of Appeal really grappled with the test on leave to oppose adoption it was Re BS 2013, which some of you may, just may, have heard of.

So it was with some trepidation that I read this case

M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 (18 April 2023)

https://www.bailii.org/ew/cases/EWCA/Civ/2023/404.html

A few big things arising from it :-

Firstly that the Court of Appeal say that in all cases where a Placement Order or Care Order is made, the Local Authority should obtain at its own expense a transcript of judgment and share with the parties. There is no analysis in this paragraph as to why, given the importance of the transcript to all, that the costs should not be shared between the LA and legal aid agency. I don’t know if this was the subject of argument, but it obviously places a substantial additional expense on LA budgets – luckily at a time when the Government coffers are very much overflowing and they are desperate to get all of that surplus money out to Local Authorities, whose biggest problem with that are building extensions to the Scrooge McDuck-esque swimming pool of gold coins that are presently too small.

Transcripts of judgment in placement order proceedings

A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.
Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

Anyway, that’s done now – get transcripts in all cases with placement orders or care orders (though you may remember that the transparency guidance was that that Judges should publish all such judgments on bailii – and that seems to be a custom honoured in the breach more than the observance and would have rendered this moot)

Second is the refined test

I would therefore state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:

  1. Has there been a change in circumstances since the placement order was made?
  2. If so, taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

More detail on the two limbs later

Third is the continuing judicial equivalent of a Wikipedia edit war, where the Court of Appeal give a decision, Mostyn J then gives a decision ‘correcting it’ and the Court of Appeal then overturn the Mostyn J decision though not on an appeal of that case but just the next time a case comes up that refers to it. (see earlier post today)

In this case, it is the decision by Mostyn J that a ‘change of circumstances’ has to mean something that wasn’t present or foreseen/foreseeable at the time.

I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16-19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:
“Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power.”
This approach finds no support in Re P, something that Mostyn J addressed in Re SA at [28]:
“Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.”
There are several reasons for rejecting this approach:
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court’s decisions in Re P and in Re B-S.
(3) The proposition was inspired by an analysis of statutory provisions relating to the court’s power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
For these reasons, the proposition in Re SA is wrong and should not be followed.

For my part, I can see some sense in Mostyn J’s view, but that’s pretty academic now.

Fourthly, and this is really good news, there’s a change to LASPO which should make it easier for parents to get legal aid to make these applications – HUGE !!

There is further refinement to the second limb of the test, which has always been the much more difficult element to grapple with.

Here the Court of Appeal say that the prospect of success of the opposal to the adoption order being made is an important factor but it is not a test, still less a determinative one.

From this, it can be seen that the prospect of success in opposing adoption if leave is granted is an important element to which the court must have regard, but it is not a test in itself, still less an exclusive one. It is helpful as a reminder that the question to be answered is whether or not there should be an opposed adoption hearing. However, the expressions ‘more than just fanciful’ and ‘solid’ are not true opposites, in that something that is not fanciful may fall short of being solid. This may lead to the court being pressed with different formulations and can cause inconsistency if the court treats prospects of success as the only benchmark.
I also note that there will be cases, of which the present one is an example, where the distinction between opposition to an adoption order and rehabilitation to a parent collapses. That situation will arise, and not uncommonly, where adoption and rehabilitation are the only possible outcomes.
Drawing matters together, I suggest that the essential question for the court at the second stage is this: Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child’s welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent’s prospects of success, and the impact on the child of contested proceedings.
In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.
Finally, the application for leave to oppose must be decided on proper evidence but experience confirms that oral evidence is not usually necessary. The court will want to take a broad view of the evidence before it, as befits a decision at the leave stage. There has been a very recent and welcome change to the availability of legal aid for parents making applications to oppose adoption: see Regulation 5 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023. This should enhance the fairness of the process and assist the parties and the court to focus on the issues, but at the same time the court must ensure that hearings and timetables are not unduly lengthened.

So the Court of Appeal approved way of looking at the second limb of the test is this

Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

That seems easier to follow than the previous principle of ‘solidity’ which I must confess I’ve never had a ‘solid’ grasp on.

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Reopening findings of fact

Posted on May 2, 2023 by suesspiciousminds

This is a Court of Appeal decision, which tidies up an area of law where the Court of Appeal has given a decision and then the High Court has ‘clarified’ and amended the test set out. (and yes, this is not the first time this blog has written about that sort of thing in the last few years, and also yes, there’s going to be another one on exactly the same point later today)

Probably the most important thing to arise from the judgment is this:-

48. A judge’s main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.

49. More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.

If you are wondering which particular High Court Judge decided Re RL, you might well be able to make an educated guess.

In this particular case

Re J (Children: Reopening Findings of Fact) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/465.html

There had been a previous set of private law proceedings involving the Father and a child A, his stepdaughter, who had made allegations of sexual assault against him. He was found not guilty in the Crown Court (2020) and no findings were made in the private law case against him (2021)

His daughter with another woman, D, made an allegation of sexual assault against him in 2022, and the Local Authority issued care proceedings.

Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A. Meanwhile the children are living with M and contact between F2 and C and D is not taking place. The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. The forensic effect of the earlier family proceedings is that the alleged assault on A is taken as not having occurred

The LA applied for those findings of fact (or absence thereof) in the private law proceedings to be reopened.

The Court at first instance were taken to the Court of Appeal authorities on the point

5. The law in relation to reopening findings of fact in children’s cases is settled. It is to be found in the decisions of this court in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140. These authorities endorse the decisions of Hale J in Re B (Minors)(Care Proceedings: Evidence) [1997] 2 All ER 29, [1997] Fam 117, [1997] 1 FLR 285, [1997] 3 WLR 1 and Munby P in Re Z (Children) (Care Proceedings: Review of Findings), [2014] EWFC 9, [2015] 1 WLR 95, [2014] All ER (D) 143.

6.In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
In relation to the first stage: (i) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

7.As Mr Aidan Vine KC rightly submitted, the requirement for ‘solid grounds’ is a part of the evaluation that the court must carry out. It is not a shorthand substitute for it.

8. In Re W (Children: Reopening: Recusal) [2020] EWCA Civ 1685, [2021] 2 FCR 793 at [28], I said this:
“It is rare for findings of fact to be varied. It should be emphasised that the process of reopening is only to be embarked upon where the application presents genuine new information. It is not a vehicle for litigants to cast doubt on findings that they do not like or a substitute for an appeal that should have been pursued at the time of the original decision. In Re E at [16] I noted that some applications will be no more than attempts to reargue lost causes or escape sound findings. The court will readily recognise applications that are said to be based on fresh evidence but are in reality old arguments dressed up in new ways, and it should deal with these applications swiftly and firmly.”

9. As I noted in Re E at [50], the approach to applications to reopen is now well understood and there is no reason to change it. During the hearing of this appeal, counsel agreed that the judge in the case, Her Honour Judge Skellorn KC, directed herself correctly and they confirmed that in their experience the courts are having no difficulty in applying the guidance that has been given. That is also the experience of this court: applications for permission to appeal give no indication that the practice of the last 25 years needs revision.

The Court at first instance was also taken to the High Court authority of Re RL , where Mostyn J was considering an application to reopen findings of fact and looked specifically at the ‘solid grounds requirement’,

L v Nottinghamshire County Council

This was an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child’s stepfather. It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it. However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings:
“42. The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:
i) First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.
ii) Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated:
“….there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …”
This exception echoed the well-known decision of the House of Lords in Phosphate Sewage Company Limited v Molleson (1879) 4 App Cas 801 where Lord Cairns LC held that an anterior judgment can be challenged where additional facts had emerged which ‘entirely changes the aspect of the case’ and which ‘could not with reasonable diligence have been ascertained before.’ In Allsop at [26] the continuing validity of this exception was affirmed by the Court of Appeal.

  1. It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before.
    …
  2. For my part looking at the matter from first principles I cannot see any reason why the general substantive law of res judicata should not apply to children’s cases. …
    …
  3. I naturally accept that Jackson LJ’s test is binding on me. I completely agree that there should be a Stage 1 form of permission filter. I completely agree that on a rehearing application mere hope and speculation will never be enough to gain permission. I am merely suggesting an interpretative reconciliation between the solid grounds test and the general law such that solid grounds will normally only be demonstrated where either the fraud exception, or the special circumstances exception, is satisfied.”

Effectively deciding that ‘solid grounds’ would mean in an application to reopen findings of fact either that there has been fraud OR that there is new evidence available which entirely changes the aspect of the case and could not with reasonable diligence have been ascertained before.

The Court of Appeal disagree and say that Re RL is an authority which should no longer be followed.

In this particular case, the Court of Appeal agreed with the decision of the first instance Judge to grant the reopening and refused the father’s appeal.

There are a number of cases potentially affected by para 48 of this judgment – one has been resolved (the test for change of circumstances in leave to oppose adoption – which will be the subject of a later post today, but one is the changes to the Court of Appeal test for circumstances which warrant a finding of fact hearing – the Court of Appeal having said that ‘benefits to the child of establishing the truth of the allegations’ and ‘risks to future children’ should be added to the list of factors to be considered and Mostyn J having determined that the Court of Appeal decided that wrongly having not referred to the proper authorities and taking them out.

Occasionally – as in the leave to oppose, my heart rather tends to agree with the Mostyn J analysis, but it clearly isn’t a satisfactory way for practitioners and Judges at the coalface to have to interpret law to have a steer from the Court of Appeal and then a change to fundamental issues of the test be reported as High Court decisions and have to wait for an appeal to clarify whether the original or current test is the one to be followed.

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Lacking / unreliable / generally weak

Posted on July 15, 2022 by suesspiciousminds

This is a case determined by Her Honour Judge McCabe – it isn’t binding authority for anything and is a fact specific case.

Given that, regular readers of the blog will discern that either the case has got some interesting quirky detail or it is a case where something has gone badly wrong. That is correct.

P, J, E-R, E-L (Children : Care Orders) [2022] EWFC 73 (28 March 2022)

http://www.bailii.org/ew/cases/EWFC/HCJ/2022/73.html

It was a set of care proceedings involving four children. The Local Authority were asking for Care Orders and Placement Orders (ie that they felt the four children should be adopted). I’m not going to go into the reasons why the children couldn’t live with the parents here – the judgment deals with it, but that’s not the significant part.

18.  Much of the time in evidence was taken up exploring the rationale behind the Local Authority’s care planning and seeking to put ‘flesh on the bones’ thereof.

19.  Given the very stark difference of opinion between the Local Authority and the Guardian, and the fact that the social worker went off sick after the first day of the hearing, it became necessary to seek to look further up the ‘food chain’ to consider whether the Guardian’s concerns might be taken on board by the Local Authority. I ended up directing the head of services to attend on what should have been the final afternoon at a time when I should have been giving judgment in this case.

20.  If I say that the Local Authority evidence has been lacking / unreliable / generally weak, I am afraid that that would be an understatement.

The Local Authority plan at the start of proceedings was that they wanted to place all four children together, but that if they couldn’t manage to find a placement for all four children together that they would be instead in two placements of two children each.

Something so fundamental as to how to divide the four siblings into two groups of two if they are not to be placed together. The care plans submitted placed the children in a particular format of two groups of two. The ADM documents placed them in a different two. When asked why this was, in her oral evidence the SW started by saying that it was a typographical error. She then went on to acknowledge that it wasn’t, it had in fact been her view that the middle two should be together and the oldest and youngest together due to the strength of relationship of the middle two, and that this had been a well considered plan, due to the nature of the relationship that they had. This had then changed when the team manager assessed the documents.

  1. Now I am told, in the team manager’s witness statement, that indeed it had been a typo, never picked up in the court documents. That it is a typo is confirmed by the ADM in his statement.
  2. It is not far short of bewildering to try to follow the Local Authority’s care planning in this case. The together and apart assessment, which the team manager and the ADM in his recent statement, confirm that they relied on in their decision making, was accepted by the social worker in her evidence (quite rightly, in my view) as being an assessment that is “fundamentally flawed”.

Obviously typographical errors do get made, and that’s unfortunate with something so important, but the Court was put in a very difficult spot here – there were effectively two different plans as to how to place the children separately – the social worker’s evidence was originally that this was purely because of a typo, but then that it was not a typo but that she had been overriden by her manager and that her assessment of how the children should be placed based on her knowledge of them had been overruled.

Now, frankly this does happen sometimes. Social workers do not work in isolation – they do have managers and senior managers, and sometimes the views of those managers does overrule the social worker. But it seems that there was not candour about this. Two differing explanations were given.

By the end of the case, the Local Authority had abandoned the plan for all four children to be placed together and was presenting instead the proposal that two placements be found, each caring for two children. (I can’t establish with precision whether this proposal was the one in the care plans, or the social worker’s view that the eldest and youngest be placed together and the middle two placed together)

I directed that the head of services should attend Court for 2pm on the last day of the trial so that investigation and explanation could be provided. I was rewarded by the team manager physically attending at 3pm. By 5pm the Local Authority was absolutely no further forward in being able to explain what therapeutic intervention would be made available and when. The head of service had declined to attend via Teams (I having been told earlier in the afternoon that she was available to attend remotely ‘from 4pm’) but then attended at 5.05pm and, in fairness, immediately appeared to understand the severity of the situation.

There then followed an ‘emergency’ statement from the team manager that came in after the close of the oral evidence, making efforts to put flesh on the bones in justifying the Local Authorities’ care planning. I’m afraid that I did not find this to be an impressive piece of evidence. It repeated the various platitudes (examples being: it is best to place siblings together if you can, adoption provides the most permanent sort of permanence and so forth) but I’m afraid that it took me no further in truly understanding these particular siblings and their particular needs.

The judgment sets out the evidence given by the Guardian in some detail

When she was recalled to give evidence on the final day, the GAL said this:

  1. “It’s really difficult to say it without saying it: the lack of appreciation from the trust as to what these individual needs are for the children and the lack of ability to reflect on what we’ve heard and take into account both now and in longer term….
  2. The landscape as to what has been progressed by LA and put remains confusing, I’m confused, I don’t know what the Care Plan is, I don’t understand contingency measures. I don’t know how court can make final orders and trust can be trusted to execute those Care Plans properly…..

I’ve never been in this position ever as a GAL, I wouldn’t feel I am executing my roles to the children if I allowed the care plans to be signed off now…..

  1. Concerns me we’ve had these proceedings running now for almost two years, the children have been represented by me, a solicitor, significant oversight from a number of professionals, should have been concluded last week, with decisions that appear to be made off the hoof, knee jerk decisions, with long lasting outcomes for the children…..
  2. No confidence that the Care Plans we are being provided with on rolling basis are right”
  3. She talked of an atmosphere in the case of confusion and said this:
  4. “It’s massively concerning the state of the evidence and how its been presented to the court, even now today, the trust don’t seem to have a proper understanding of what the children need moving forwards…..
  5. Less than 40 minutes ago, the plan changed from placement all four together, to the parallel of two and two……
  6. It’s confusing and I think the court needs proper evidence before it is in a position where trust is given to professionals to ensure the childrens’ needs are properly met in the longer term. Options extremely limited……
  7. I’m not happy, I’ve known these children long enough to know they deserve what’s right for them, not confident that the Care Plans meet their needs”
  8. It should be noted that all of this was said at a time when it was necessary to recall the Guardian to give evidence after having a further morning of evidence from the team manager who had had to prepare a statement of evidence over the weekend.
  9. The way in which this case has proceeded is, in my judgment, wholly unacceptable. These are applications for placement orders for four children. The parents, each of whom have their own mental health vulnerabilities, oppose the applications. They should not be having to react, with their Counsel, to ever changing plans and evidence served last minute. It is difficult to understand how it is that these proceedings can be so heavily delayed and yet come into Court in such poor order, and as I made clear at various points during the hearing, this could not have been rendered more painful and difficult for the parents had it been deliberately designed that way. Having said that, I ensured that time was given at each stage that it was necessary, and I am satisfied that the parents have in fact had a fair and full hearing. It was unfortunate, however, that parents who are facing the permanent loss of four children, had to endure and listen quite so much and wrangling between professionals.

The Guardian made an application for an independent social work assessment to carry out the social work assessment of the children’s needs and relationship dynamics to inform how the children should be placed.

  1. The Guardian has made, after the close of the evidence, an application under part 25 for a further assessment. She considered that this was necessary because somebody independent was needed to carry out, in blunt terms, the work that the Local Authority should have done and that she no longer trusted that they would do. She believes that there needs to be a proper assessment of the needs of J and P, whether they should be placed together or apart, whether they should be placed for adoption or long term foster care, what their therapeutic needs are and how they can be met, by whom and when.
  2. I have found this difficult to wrestle with. On the one hand, I completely understand why the Guardian has felt compelled to make this application. Such ‘analysis’ of realistic options as could be found from amongst the thousands of pages of evidence in this case was woefully inadequate. That much the team manager, in fairness, accepted. For these two children, on the very cusp of what would be considered an ‘adoptable age’ and with marked behavioural difficulties, and difficulties in their own relationship, the welfare analysis carried out by the Local Authority should have been exquisitely sensitive and absolutely focussed on the individual characteristics of the children.
  3. Instead, what the Local Authority provided was little more than the usual platitudes of ‘adoption provides the best permanency’ and ‘siblings should be raised together’. I am afraid that, even after the additional statement of evidence of the team manager, things did not get much better. I agree with the Guardian that the care planning, when a limited concession was finally made at Court, could be described as ‘knee jerk’.
  4. I understand why there is so little trust in the Local Authority by the Guardian.

The Court did not grant that assessment – the Court made Care Orders and Placement Orders for the youngest three children, but determined that the eldest child P should be placed in long-term foster care rather than adopted.

I make some concluding remarks. This case has been extremely difficult and almost impossible to ‘keep on track’. It has taken the strenuous efforts of the Guardian, Counsel for the Guardian, and the Court to ensure that the case proceeded in a proper manner, to the extent of the Head of Services for the Local Authority having to be summoned to Court at 5pm on a Friday afternoon.

  1. This should never have been necessary and was only made necessary because of the almost absence of proper, responsive, careful planning by the Local Authority. The Local Authority’s advocate was, at some points, left with nobody at all at Court to assist her or give her instructions, and at times with nobody from the Authority even listening in to the evidence on the Teams link.
  2. The allocated social worker, who absolutely did her best to assist the Court, had to admit that her together and apart assessment was fundamentally flawed. That evidence was given on the first day of the hearing. From that point onwards it should have been patently obvious to the Local Authority that there was a real issue with their care planning and that careful consideration needed to be given to the complexities of the sibling relationship and their individual needs. Instead, the Local Authority remained doggedly fixed with its original care plan, providing generic reasoning only in its defence, and failing to see the complexities and nuances of the case.
  3. In the end I have made orders that could be considered to be fairly predictable and reasonably uncontroversial on the facts of this case. They were the orders initially being suggested, for very good reason, by the childrens’ Guardian, and had the Local Authority been able to bring a more responsive, thoughtful, flexible eye to what was happening in Court the proceedings could have been much shortened and the parents spared having to listen to lengthy arguments amongst professionals about how care planning for their children should or should not be undertaken. I very much hope that this will not have to happen again.

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Adoption as orthodoxy

Posted on January 29, 2020 by suesspiciousminds

 

 

 

I note that adoption is once again becoming a political football, with Government spokespersons holding it up to be the gold standard for children. We have been here before, and no doubt we will be here again.

This judgment from a Circuit Judge is therefore both timely and sadly timeless. None of what is said within it is newly binding (save that the Judge carefully and accurately records the statutory and regulatory sources, and the caselaw from which her analysis derives, and that some of the matters within it are long-standing regulations which have not been forensically inspected by a Court before) but I think all of what it contains is powerful and an important reminder of the stakes in which we are dealing when the Court is asked to make decisions about children’s futures.

It is also a case involving a decision about wasted costs in a highly flawed Placement Order application, and in which counsel who tried to be clever about the word ‘reprehensible’ received something of a lesson.

The case was heard by Her Honour Judge Lazarus (and my fingers in typing almost wrote ‘as she then was’ as though I had slipped forward in time a few years)

A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020)

https://www.bailii.org/ew/cases/EWFC/OJ/2020/B2.html

 

The case involved a a girl of 4, whose parents had accepted that the threshold criteria were crossed and that they could not care for her. The only realistic options before the Court were a plan of adoption or a plan of long term fostering. The Local Authority sought a Placement Order and thus a plan of adoption.

 

An important issue in this case was how large an immediate and extended family this child had, and the careful need to consider the impact on the child of maintaining or severing relationships with that family.

 

  1. Another key element of that background, as already mentioned, is the very large family-centred tight-knit active family group that she belongs to. This already holds out the prospect of meaningful relationships with at least 29 individuals in this country in her immediate family (parents, siblings, grandparents, nephews and nieces) let alone the further dozens in the next ranks of her extended family (aunts, uncles, cousins), many of whom are close in age to A. Drifting too far from being able to create and maintain those relationships, and from some familiarity with their traditions, would be highly detrimental to A and the prospects of a future richly populated with loving relatives and their shared heritage. Supporting these aspects, and acknowledging the challenges given her characteristics, is very important to A’s long-term welfare.

 

 

The Judge made it clear that she was not critical of the Local Authority for considering an option of adoption

 

  1. To be clear, there is no criticism of the making of an application for a placement order itself. There would have been scope for this complex and finely balanced argument to be made properly to the court, and for the court to consider all the aspects of the issues applicable to such a serious step in order to determine the appropriate outcome

 

However, despite it being identified once the LA final evidence was filed that it was lacking in the necessary carefully balanced analysis and argument, and the Local Authority being given further opportunities to remedy that by addressing clearly identified missing issues in addendum evidence, the requisite quality of evidence never emerged. The LA had three such opportunities, including on the first day of the hearing, and matters ended up unravelling completely during the social work evidence.

 

  1. However, what analysis there was emerged as incomplete, partial, unsupported by sufficient evidence or reasoning. ‘Permanence’ was lauded above all else, with little rationale or substantiation or research to underpin that claim and the assumptions and assertions made.

 

 

  1. What analyses there were hardly touched upon the disadvantages to A of adoption and effective severance from her birth family, or the problems posed by her diagnoses in terms of any attempts to mitigate those losses.

 

 

  1. Negative observations in relation to the family were over-emphasised based on the slightest of evidence, and positive issues for which there was ample and good evidence were hardly mentioned if at all. Whole factors that would not sit easily with the plan for adoption were almost completely ignored. It was a skewed and highly partial approach.

 

 

  1. Ultimately, such an approach not only undermines the local authority’s own case for adoption because the good and substantial evidence and analysis required by the case law is simply absent, but it does not serve the child well nor assist the court.

 

 

  1. I entirely accept that there are, sadly, many cases where the drastic and life-changing severance of legal and other forms of relationship with birth families are justified. Often it is where the incapability of family members to meet a child’s needs or the risks of significant harm are very great, and where the benefits to the child of ongoing relationships with birth family members are scanty, being of poor quality, negative impact or largely non-existent in terms of any obvious positives or likely continuation.

 

 

  1. Here, the contrast with such situations was very great, with a very large loving connected family group holding positive respectful family values, celebrating a distinct culture and heritage, highly co-operative, admitting their area of parenting failure but otherwise forming a wide group of highly functional happy secure close adult and child family members, and offering consistent positive committed loving relationships to A, and in particular with siblings, nephews, nieces and cousins who are close to A’s age.

 

 

  1. 63.   This required careful, nuanced, thoughtful and balanced analysis. Instead, listening to the social worker’s oral evidence was a painful experience. Almost none of those benefits and contrasts were touched on at all. No research was referred to in her documents or oral evidence. It was difficult to get her to focus on A’s needs and characteristics, as opposed to reciting generalised assertions about adoption. It was clear that she initially thought she had fully reviewed A’s welfare interests, even though her document was largely a cut-and-paste copy of the initial CPR with a few further paragraphs added and a slightly expanded tabular discussion of various pros and cons.

 

 

  1. The process of cross-examination increasingly revealed glaring gaps and distorted arguments. It was telling that, despite the local authority claiming that it grasped that this was a complex and unusual case and that all the relevant issues had been considered, in fact very few of the relevant complexities were set out or analysed in any document and not even in this social worker’s re-amended document. It was further telling that, when the possibility of a contact order that would help to support A’s family relationships and her exposure to her culture and heritage was raised with the social worker, her first reaction was not to consider it in terms of A’s needs and characteristics but to protest that this would narrow the pool of prospective adopters.   A prime example of the tail wagging the dog.

 

 

  1. Overall, the local authority’s evidence was an effective demonstration of confirmation bias. The virtues of the permanence and security of a ‘forever family’, and which in abstract principle I do not doubt, nonetheless were sketchily asserted and additionally appeared to blind the social workers to the need to address those specific aspects of A’s needs and characteristics that did not fit with that proposal, and prevented any real analysis of permanent estrangement from her birth family.

 

 

  1. In particular, there was no evaluation of how that would work in combination with her likely cognitive difficulties, which would undoubtedly make it far harder if not impossible for her to benefit from sparse or indirect contact, or from using indirect resources such as the internet, language lessons or photographs to keep her in touch with her heritage and her family’s native languages and practices. There was no consideration whatsoever that there would be a high likelihood of adoption realistically resulting in an effectively drastic end to A’s ability to grasp aspects of her heritage, experience the warmth and breadth of her birth family, speak and understand some words of her parents’ native languages, feel and benefit from the sense of belonging to this large loving family with rich and coherent traditions – even if she could not live with them.

 

 

  1. The local authority’s approach was starkly epitomised in the following quotation and sole rationale in the initial ADM report: ‘given A’s age the only permanency option viable for A is adoption’. This assertion was made without any supporting analysis, let alone consideration of what other options might exist and how any option does or does not meet A’s needs and welfare interests.

 

 

  1. This flawed approach begs so many questions of this local authority. How is it that adoption appears to have become a kind of orthodoxy that requires inconvenient matters to be ignored and others to be twisted into its support? Is there an endemic automatic approach to a younger child’s age which results in a simplistic tick-box response instead of a careful analysis of her particular welfare interests? What sort of positive qualities would a birth family need to offer to be able to dislodge this approach to adoption and trigger a more balanced analysis and a preparedness to consider and address the full range of options? How has this local authority not followed the clear guidance of well-known law, and so failed to provide the evidence with which to ask the court to properly determine such a drastic and serious intervention in the life of this child?

 

 

  1. Ultimately, even with the further opportunities that the local authority had following the adjournment in November plus the further enhancement of the social worker’s written efforts at the outset of this hearing, the exposure of these failings led the local authority to perceive that it had again manifestly failed to meet its obligations and thus it withdrew its second placement application at this adjourned final hearing. The necessary evidence and reasoning that would have permitted this court to carry out the difficult balancing exercise had simply not been properly provided.

 

 

  1. These observations, and the local authority’s failure to meet these requirements of well-known law, become particularly pertinent given the local authority’s fundamentally flawed application for a placement order that led to the first final hearing being adjourned.

 

 

It is clear from what is said that both the original Child Permanence Report and the amended later versions were significantly flawed. The Judge summarises the statutory guidance and reminds us of the purpose of the Child Permanence Report – this is the document that fundamentally informs the Agency Decision Maker (the senior manager at a Local Authority, usually Assistant Director or Director level) as to the relevant information that leads that Agency Decision Maker (ADM) whether or not to make a decision that adoption should be the Local Authority plan. (An individual social worker cannot decide that adoption is the plan – they can recommend it to the ADM, but it is the ADM who decides). Therefore, the information in the Child Permanence Report (CPR) must be accurate, it must be fair, it must be balanced.

 

 

  1. The Statutory Guidance on Adoption provides that information must be accurate and distinguish fact from opinion:

 

1.17. Reports should be legible, clearly expressed and non-stigmatising. The information should be accurate and based on evidence that distinguishes between fact, opinion and third party information. The information should be checked to ensure that it is accurate and up to date before it is submitted to the adoption panel.

 

 

  1. The guidance goes on to explain why the accuracy of the CPR is so important:

 

2.64. The accuracy of the CPR is essential, since it will not only form the basis on which decisions are made about whether the child should be placed for adoption but will also assist the agency in matching the child with an appropriate prospective adopter, and will be the source of the information about the child on which the prospective adopter will rely. In due course the child, on reaching adulthood, will be able to request a copy of the CPR under the AIR and may have to rely on this document as the principal source of information about their pre-adoption history.

 

 

  1. The Court of Appeal has emphasised the legal requirement for the CPR to contain an analysis of all relevant placement options, including the reasons why adoption is the preferred plan. In Re B (care proceedings: proportionality evaluation) [2014] EWCA Civ 565, [2015] 1 FLR 884, concerning a successful appeal against a placement order, Ryder LJ observed that the CPR “ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated … That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made.”

 

 

 

 

  1. In Re S-F (a child) [2017] EWCA Civ 964 the Court of Appeal highlighted the need for reasoning to be specifically related to the child concerned:

 

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for the child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

 

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.’

 

 

There are regulations – The Restriction on the Preparation of Adoption Reports Regulations 2005 AND Adoption Statutory Guidance designed to ensure that this is the case. Pivotal amongst these is that the author of the Child Permanence Report must be qualified to write one, and must certify in the report whether they are so qualified, or whether their manager who is so qualified has supervised them in the writing of it. The qualification is three years of child social work, including direct experience of adoption work.   (In short, a social worker who is in the process of learning or has no direct experience of adoption work can only write the CPR if their manager (who HAS such experience) supervises them in the writing process. And by implication, as the manager has to sign off on the report that the manager is signing to say that the report does all it should.

  1. The guidance also sets out the expectations of the role of the supervisor:

 

1.15. For those individuals who are being supervised, their work should be supervised in accordance with their particular skills, experience and development needs. It is not necessary for the supervised social worker to be under the direct line management of the supervising social worker.

 

1.16. Where reports are being prepared by social work students, independent social workers or social workers who do not have the necessary experience, the draft report should be considered and discussed during supervision and signed off by a social worker with the necessary experience before the report is submitted to the adoption panel, another agency, or the court.

 

1.18. The person who prepares the report should sign and date it and indicate how they meet the requirements of the AAR. Where the person has been working under the supervision of a suitably qualified social worker, that social worker should sign the report as well, indicating the capacity they are working in and how they meet the requirements of the AAR.

 

 

In this case, the social worker was not suitably qualified, but instead of checking the box to say that she was not and having her manager sign to certify that it had been prepared under supervision simply checked the box saying that she was qualified, which she was not.

 

  1. Page 3 of the CPR specifically asks the author to confirm that they are suitably qualified under the Regulations to prepare this report. There is a numbered footnote next to that question, suggesting that further information on that point was available to the author while completing the document. The social worker’s response was “YES”.   The social worker has since explained that claiming that she was suitably qualified was simply an administrative error, an oversight. She should have marked NO, as she does not have the requisite experience under the Regulations.

 

 

  1. When the local authority was asked at court on the first day of the November hearing whether the social worker was in fact appropriately qualified and to provide details of her direct adoption experience the local authority’s response was that she does not have the requisite experience but “was supervised”.

 

 

  1. The space provided for details of the supervisor to be given has been left blank, which boxes also appear on page 3. It has been suggested that this is because the form uses a drop-down box format and that in clicking on YES the subsequent boxes did not then appear in order to be completed.

 

 

  1. However, I note that both the social worker and her team manager provided their signatures in the relevant boxes on page 3. They would both have had the opportunity and should have seen on the same page that they were signing, that the relevant boxes in relation to the Name and Signature of the supervisor were blank, and that the social worker had wrongly confirmed that she was a qualified person under the Regulations.

 

 

  1. I also note that in his statement the Director of Children’s Services referred to two individuals said to have supervised the social worker to the satisfaction of the relevant Regulations: her service manager and her assistant team manager. He claims that the supervision involved: ‘initial planning… including identifying who needed to be seen and interviewed, reviews of previously completed CPRs to inform the process of completion of the index CPR, and discussions about the conclusions of the same.’

 

 

  1. There are no details given of the capacity of either of these two individuals to fall within the relevant supervisor category, or of which of them carried out what supervisory tasks and exactly how that satisfied the regulations. There are no notes or records provided of supervision sessions. Tellingly, there is no assertion in his statement that either of them read the report or considered its contents beyond ‘discussions about the conclusions’. Clearly, neither of them signed the CPR, even though, if supervision were being adequately conducted, they would have expected this to be asked of them.

 

 

  1. It is clearly possible that the local authority may have committed a criminal offence under section 94 Adoption and Children Act 2002 and the Preparation of Adoption Reports Regulations 2005, but I cannot conclude whether that is the case or not. I note the Director’s refutation of this accusation. This is not the tribunal in which a summary offence is tried. I have not been provided with sufficient information to assist with any safe conclusion either way, nor would it be proportionate in the circumstances of this case to conduct an examination of all the background facts and the detailed nature of the supervision said to have been provided.

 

 

  1. At the very least, this ‘oversight’ was therefore missed by four people: the social worker, her team manager, her assistant team manager and her service manager. I am driven to suspect, but cannot properly put it higher than suspicion, that this oversight may possibly have been a consequence of ignorance of the requirements, the Regulations and of this offence.

 

 

  1. Additionally and significantly, adequate supervision should have identified the numerous deficiencies in content and analysis that are now admitted by the local authority.

 

 

  1. It also remains unclear who in the local authority holds the position of agency advisor as the individual with overall responsibility for quality assurance of the CPR, and whether this document was ever seen by this individual. This again begs the question as to what checking systems are in place, and how such an inadequate report, written by a social worker who did not have the experience required by law to write such a report, was permitted to be submitted to the ADM.

 

The CPR, as well as missing significant information and a balanced analysis, contained within it assertions as though they were fact, when the LA knew that the parents disputed those assertions and were not asking the Court to make findings. That sounds complex, so let’s unpack it

 

If there’s an allegation in proceedings that daddy hit Jack with a stick, then those allegations become a fact if :-

(a)Daddy admits it

(b)Daddy is convicted of it

(c)The Local Authority invite the Court to find as a fact that it happened and the Court, having tested the evidence does so.

 

 

In the absence of (a) or (b), if the Local Authority want to be accurate in the CPR they say “There is an allegation, yet to be proven, that the father hit Jack with a stick, the father denies it saying ___________, the evidence that the LA rely on that it happened is ___________ and the Court will be asked to find this as a fact”OR “There was an allegation made on _____ about physical mistreatment, this is denied and the Local Authority accept that there is not sufficient evidence for the Court to be asked to make a finding”

To simplify even further – this is the LA having their cake and eating it. Relying on the allegation to persuade an ADM that adoption is the plan, without going to the effort of proving it. This is WRONG.

 

  1. In addition to the above acknowledgements, it is also the case that the CPR contains much information presented as fact (for example pages 18-19) even though the local authority should have been aware it was disputed by the parents and it was not pursuing findings in respect of the disputed issues. This is particularly concerning given that paragraph 2.64 of the Guidance emphasises the need for accuracy, and that a CPR is often an important and sometimes sole source of information for a prospective adopter and for the child (see 2.64 set out at paragraph 82 above).

 

It is astonishing really that this needs saying, but it clearly does. As a Local Authority, if you are putting a disputed allegation onto the balancing scales to make decisions, then you need to seek to PROVE it. If you have decided you don’t think you can prove it, or that it isn’t proportionate to ask the Court to do so, then you DON’T GET TO PUT the allegation on the scales. Put up or shut up.

 

 

The ADM doesn’t escape condemnation

 

AGENCY DECISION MAKER’S DECISION –

 

 

  1. Given the manifest failures to comply properly with the Act and the Regulations and applicable guidance and case law in relation to the CPR, it was clearly not possible for the initial ADM to have made a valid and lawful decision based upon that material (Re B (Placement Order) [2008] supra, quoted in paragraph 78 above).

 

 

  1. It is also plain that the ADM in any event in her own right failed to comply with the relevant law and guidance in the decision dated 12 September 2019. The decision is set out in nine paragraphs which summarise the background history and then concludes with a single sentence as the only analysis or rationale for the ADM’s decision: “However, given A’s age the only permanency option viable for A is adoption”.

 

 

  1. This is shockingly poor and in breach of the relevant law and guidance. In particular:

 

–         The ADM failed to consider whether the social worker was permitted to prepare the report under The Restriction on the Preparation of Adoption Reports Regulations 2005.

 

–         The ADM failed to identify any arguments for or against adoption or long-term foster care, save for A’s age, and failed to give any reason for the decision, save for the child’s age.

 

–         The ADM’s sole reason appears to amount to an orthodoxy or set policy based on age alone and showed the local authority had failed even to consider long-term foster care as an option at all.

 

–         The ADM failed to consider any of the factors in the welfare checklist save for A’s age. This excluded any consideration of A’s background and identity, the impact of her needs and developmental issues, her relationships with her relatives (not only her parents but siblings and wider family), and the value of those relationships continuing.

 

 

 

  1. The Director of Children’s Services claims in his statement that the ADM had, in fact, taken the full welfare checklist into account, but had simply failed to record that exercise. He also accepts that the key arguments for and against adoption were not articulated in the report, and concedes that these failures to meet requirements resulted in a flawed placement application. In my judgment, his concessions do not go far enough and do not even reflect the local authority’s own guidance that was in existence at the time of the decision.

 

 

Nor does the Local Authority legal department

 

   It is the local authority’s legal team who will have taken the relevant steps to issue the placement application. In doing so, the lawyer handling this case should have read the relevant documents underpinning the proposed application. This should have immediately caused the lawyer to flag concerns relating to the adequacy of the CPR and the ADM decision, and whether the ADM could have made a lawful decision on the basis of the CPR.

 

 

  1.                      This should have led to the matter being referred, if it had not been referred already, to the agency advisor for review of the documents in question.

 

 

  1. It also should have led the lawyer to refer the matter back to the social work team, service manager or other senior member of Children’s Services in order to rectify the situation.

 

 

  1. The issue of a placement application should not become a rubber-stamping exercise, but a rigorous examination of whether the legal requirements for such a serious application have been met

 

I would completely agree with this. It might to implement it properly, need an adjustment of Court timetables. A Placement Order application is a huge piece of work, and because generally the social work evidence comes in right against the deadline if not already late, a Local Authority lawyer is working frantically to get the application issued as soon as possible, so that other parties can respond and the court timetable does not get derailed. We need to make time to do what is such a critical job properly, even if that means having to seek to vary the Court timetable to give it the time it needs. Child Permanence Reports are dense documents, the application form for Placement Orders is, as any Local Authority lawyer will tell you, the absolute WORST form to fill in, you’re doing it at the same time as checking all of the final evidence and care plans. It takes more time to do right than we are able to give it. And what normally has to give there is that the task is delivered in the time you’ve got, not the time you need.

(None of this is intended to be excuses, it is context. Similar things are true at every stage of this flawed process – everyone is working to the time they’ve got, rather than the time they need. Sometimes we need to stand up and say ‘we need more time please Judge, because…’ and let the Judge decide)

 

As a result of the flaws in this case, the Court considered whether to make a wasted costs order (i.e that the Council should pay for everyone else’s legal costs)

They were ordered to pay the costs of one day of the Court hearing

DISCUSSION & CONCLUSION

 

 

  1. Appropriately, the local authority has recognised that its actions place it at risk for the costs of at least part of the three days of the November hearing. The Respondents’ costs are all met by the Legal Aid Agency, and I have taken into account their respective similar positions in defending the funds of that agency and requesting that a costs order is made against the local authority for the three days.

 

 

  1. It was suggested on behalf of the local authority that these issues should have been drawn to the local authority’s attention by others at the Issue Resolution Hearing in late September. I reject that submission. None of these flaws should have been permitted to have tainted the documents and decisions of the local authority in the first place, none of the issues are novel but are well-known aspects of statute, case law and guidance. These were the standard responsibilities of the local authority, and not of the other parties nor the court.

 

 

  1. 137.                       Counsel also, ingeniously but unsuccessfully, attempted to suggest that the court should consider that the actions of the local authority were not ‘unreasonable’ or ‘reprehensible’ as they were the result of oversights rather than bad faith.

 

 

  1. The ordinary dictionary meaning of ‘reprehensible’ is ‘deserving censure or condemnation’ and derives from the latin verb meaning ‘rebuke’. I consider that each and every error identified in the local authority’s process deserves censure and could and should have been avoided. It was unreasonable to issue a placement application based on such material and, given the nature of the underlying errors, where the law relating to the standards to expect of evidence and analysis in adoption cases should be so well-known.

 

 

  1. The starting point here is that without the numerous and egregious errors of the local authority a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing.

 

 

  1. I do not consider that it was inappropriate to propose a plan for adoption and to seek a placement order, but the method by which it was pursued and applied for was riddled with avoidable error and failure to comply with important rules and requirements.

 

 

  1. Counsel for the local authority also urged upon me the positive steps taken by the local authority since November, and that the local authority could be said to have needed to have taken some significant time to consider the issues arising at the November final hearing and so should only bear the costs of a single day. The first point is a good one, and the second fails given that the errors should never have seen the light of day or gone ahead uncorrected in the first place.

 

 

  1. I welcome and bear in mind those positive steps outlined by the Director of Children’s Services, and consider that they go some way towards mitigating the local authority’s position. I have directed that the local authority should write to inform the court of the completion of each step identified by the Director and that I have mentioned in paragraphs 124-127 above.

 

 

  1.      I note that the pressures on the budgets of hard-pressed local authorities is very great, and that any costs order deprives this local authority of funds which can be used to assist children and families in need.

 

 

  1. In the circumstances, and bearing in mind the overriding objective, although it can quite properly be said that this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days, I am satisfied that it is sufficient censure to point this out in the context of the criticisms of this detailed judgment, to take into account the positive steps that are anticipated will prevent such avoidable errors in future, and to require the local authority to meet the Respondents’ costs of one day of the November hearing. Costs will be assessed.

 

 

 

 

  1. Finally, it will be noted that I have not named any single professional employed at this local authority. The local authority, quite properly and as required by case law, is identified. However, the problems appear to be systemic and wide-ranging. The identified problems touch each element of this local authority that has become involved in this case: social work, supervision, management, decision-making, legal advice, internal training, standards and checking systems, and ranging from social worker to lawyer to Director. Accordingly, it would be misleading and would attach too narrow a focus to name any single individual.

 

 

What this judgment is NOT, is a balance of whether long-term fostering is better than adoption for children generally. Instead, it is a careful reminder that in order to make a decision that involves permanent separation of a child from the parents and their family, the evidence has to be tested, it has to be accurate, it has to be checked, it has to be fair, and that processes, guidance and caselaw that are laid down to achieve that are ignored or bypassed not only at our peril but at the expense of justice and the children that we are working to help.

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Don’t turn around

Posted on October 28, 2019 by suesspiciousminds

 

I’m going to write about the appeal reported on Friday which revolved around judicial misconduct.  I’ve been beaten to it by both Pink Tape and Civil Litigation blog here http://www.pinktape.co.uk/rants/judicial-conduct-what-about-the-context/    and here  https://www.civillitigationbrief.com/2019/10/25/appeal-allowed-when-the-trial-judge-overstepped-the-line/  respectively.

 

So I’m not going to go into as much detail on the background as they do.  Their pieces are both very good, so read those when you’re done.

C (A Child) (Judicial Conduct) [2019] EWFC B53 (16 October 2019)    

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B53.html

 

 

A District Judge (DJ Mian) in Birmingham decided a care case after a 5 day final hearing. The Judge granted an placement order for the child, M, who was 1.   M had an older sibling, N, who was already the subject of a Care Order (to a different Local Authority) and was in residential care though possibly moving to a grandmother in due course.

At the hearing, the parents accepted that they could not care for M.  The only options were adoption or placement with the grandmother.  The placement with the grandmother was complicated, because it depended in part as to whether N was going to go to live with her.

The judgment was 38 pages and very detailed. The Judge hearing the appeal, HHJ Rogers   (one of the most courteous barristers I’ve ever met, a really lovely man)  noted that the judgment was thoughtful and careful and

The legal exposition, read in isolation, could not possibly support an arguable case that there was a misdirection.

 

The appeal, however, was largely based on judicial misdirection that the Judge had really been deciding about the plan for M whilst thinking too much about the plan for N (a child with whom she was not charged with considering) and judicial misconduct.

In essence, the Guardian had been saying at final hearing, you shouldn’t rule out placing M with the grandparents just because N is going there, because N  has problems that might mean the plan to put him with grandparents never happens.

  1. In the course of the Guardian’s examination in chief the Judge intervenes (E222):
  2. “No, there are two things going on here and this is what has, forgive me, with the greatest respect, seems to have, confused the front bench completely. There are two things going on here. One is the actual plan for N and that is to return home. And there were several attempts to go behind that plan which I have fairly robustly drawn an end to on the basis that you cannot go behind that plan. There are three ways of looking at it. The second is the reality and, as I said to everybody, in particular the grandparents, they may be absolutely right that N never comes home. But because we have the plan for him nobody can say that with any certainty.”
  3. Mr Bainham submits, in my judgment, with great force that if the Judge herself acknowledged the uncertainty of the situation, it was wrong of her to assume the absolute position of the care plan without exploring the contrary and worse it was wrong of her to shut down and ultimately extinguish argument on the point. The explanation, he submits, is that the Judge became distracted by N’s position to the point where she felt it her responsibility to promote it over M’s. In my judgment, there are many examples in the evidence of the Judge’s approach becoming less focussed on M’s welfare than it should. At E230, the Judge intervenes in the questioning of the Guardian again and in a lengthy passage she speaks of “competing plans” and sets out forcefully the implications for N if his plan is overridden. Later at E242, still ostensibly in the course of the Guardian’s examination in chief and clearly exasperated the Judge says:
  4. “No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N’s plan.”
  5. The difficulty with that interjection, as Mr Bainham submits, is that no party was suggesting the Judge could or should interfere with the plan. Simply she was being asked to bear in mind the reality that there was credible evidence (counsel refers to it in his Skeleton Argument in detail) that the likelihood was that the plan would never be implemented.

 

[By the time the appeal came about, the LA responsible for N had changed their plan from placement with grandparents to accepting that his needs were such he needed to stay in residential care – the outcome posited by the Guardian and rejected by the Judge had come to pass]

However, more than this, it appears that the Judge just became increasingly exasperated by the position of the Guardian and was unafraid of showing it.

 

  1. It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court’s duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential.
  2. In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.
  3. The criticism of the Judge is really two-fold. Not only, it is said, she shut down consideration of a central issue rendering it impossible to have a fair hearing but, further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.
  4. I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage. What actually happened was the worst of all possible worlds as the point was debated over and over, mainly by the Judge and Ms Hobbs, with no satisfactory resolution.
  5. Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
  6. I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.
  7. The Judge’s frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian’s analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian’s perceived failure of approach. Perhaps a good example of what went wrong is to be found at E245-247. Over the course of those 3 pages the Judge effectively cross-examined the Guardian as if she were representing another hostile party. In my judgment, there and in many places elsewhere the Judge went far beyond clarification or amplification and descended into the heart of the arena.
  8. In her judgment (A33, para 135), the Judge records the Guardian’s recommendation as a final care order and placement order. That is in contrast to paragraph 134 where she said she stood by her recommendations. In my judgment, it is clear that the Guardian was inhibited from explaining her position fully because of the Judge’s apparent hostility. In the end the Judge stated (A41, para174) that “I do not take into account the evidence of the Guardian”. Read literally that is a clear error. Even if she does not precisely mean what she appears to say, she plainly discounted the view of the Guardian. I am driven to the clear conclusion that, ironically, the quality of the Guardian’s evidence was severely diminished by the Judge’s own interventions.
  9. Family proceedings should not be unnecessarily adversarial. One important function of a Judge, in a quasi-inquisitorial jurisdiction, is to help the witnesses give their evidence in a clear and unflustered fashion. Of course, points can be questioned and tested but not, in my judgment, to an extent that a witness is unable properly to fulfil his or her role. This, it seems to me, is all the more so in care proceedings when a Guardian is trying to explain her professional view to the Court. Here, Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.

 

Just to repeat the key passage here

 

“blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.

 

I think over the course of a long career in Court, everyone has the experience of inadvertently exasperating or irritating a Judge and it always makes you feel dreadful.  I had a time practising in the West Midlands, and there were certainly Courts in Birmingham where I would feel apprehensive, nervous and sometimes physically unwell before going in, knowing that the judicial style amongst certain Judges was overly robust  (for those who know, the words “Humpty Dumpty” will ring vividly in the memory) so advocates in Birmingham don’t tend to be thin skinned, but this is unspeakable and unacceptable.

 

[In another part of the country and a very long time ago, I’ve had a Judge throw volume 2 of Hershman’s at me during a hearing. It is quite a thick volume, in a hard cover.  Thankfully he missed and it hit my completely innocent opponent]

The grandparents, who were in person during the hearing, were rightly appalled by what was happening.

  1. Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:
  2. “1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.

3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.

4. The way the Children’s Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional.”

  1. This letter encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N’s care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.

 

Counsel for the Guardian had attempted, during the hearing to draw attention to the problem that was developing, but was given short shrift.  (Has anyone ever been given ‘long shrift’? I wonder idly)

 

The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says “Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………”. The Judge intervenes; “Well, please do not be.” Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265

 

 

The Local Authority stance at the appeal was of interest

 

 Birmingham City Council (LA B) takes a more nuanced approach. But for the factual change of circumstances, to which I will turn, it would have been inclined to resist the substantive appeal. As to the procedural appeal, it indicated it preferred to make no detailed submissions, adopting a broadly neutral position. I expressed mild surprise at that stance but, upon reflection, having heard Ms Julyan SC explain the sensitivities and importance of the working relationship between LA B and the Court, I understand why it does not wish to associate itself proactively with the more severe criticisms of the Judge’s conduct of the case.

 

 

The appeal was granted, the Judge would have directed a re-hearing, but because the position with N had changed, by the time of the appeal the LA were no longer seeking a placement order for M and thus the plan became placement of M with the grandparents. So a happy ending.

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Author not liable for any wince-related injuries

Posted on October 3, 2019 by suesspiciousminds

This case is ‘about’ an application for an injunction to protect a person who was considered to be vulnerable but who had capacity to make their own decisions, but it is really ‘about’  the Local Authority sending 1400 pages to everyone on a Friday for a final hearing that started on Tuesday, with said documents undermining / flatly contradicting the evidence the LA had filed, so it has some broader implications.   I think most people reading this will have had the experience of suddenly being dumped with a huge stack of papers that appeared at the last minute, even if they weren’t quite as voluminous and devastating as this.  It is a salutary lesson that if you do ruin someone’s weekend by doing this, they are going to be highly motivated to make you pay hard for it.

 

London Borough of Croydon v  KR 2019

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2019/2498.html 

 

 

It is telling that the LA had to withdraw the case after the two social workers  gave evidence.

 

 

 

Read and wince

 

I had witness statements from Ms Jones, KR’s social worker; Ms Bamfield, ST’s social worker, and two witness statements from KF. I also had a short statement from KF and ST’s son, DF. I heard oral evidence from Ms Jones and Ms Banfield. I also had in the court bundle 1400 pages of background documents. I understand that these were sent to KR and ST’s lawyers on Friday, i.e. 3 working days before the trial started. Some of them had been previously disclosed, but it is almost impossible to tell which ones. Very few had been exhibited to the LA’s witness statements. The vast majority of these documents will necessarily never have been seen by KR or ST because they come from the LA’s records. Some of these documents paint a materially different picture from that in Ms Jones’ witness statements, particularly in respect of the degree to which ST was obstructing the carers from CSL accessing the property and at least checking on KR. They also paint a different picture of the degree to which KR was at risk.

 

 

 

17.          There are a number of points of concern to me about these documents. Firstly, it is not acceptable that they were only disclosed, at least in this form, so shortly before trial. The hearing date had been set down since 21 May 2019, and the late disclosure meant the bundles were both unmanageable, and in reality, unreadable. Secondly, the disclosure appears to have been in the form of simply putting all these documents in the court bundle without any attempt to agree the bundle. Again, this is not acceptable, at the least attempts must be made to agree a bundle, and the bundle should be limited to documents which will be necessary for the judge to consider.

 

 

 

 

18.          Thirdly, and most importantly, I am seriously concerned about the discrepancies between what some of these background documents show and what was said in the evidence to the court, particularly in the first witness statement of Ms Jones, which was the basis of the without notice order. This case commenced with an application for an injunction without notice. It continued through a series of interim injunctions where the judges necessarily had very limited time to examine background documents, even if they had been exhibited, which in key instances they were not. It is trite law that when a without notice injunction is applied for there is a duty of full and frank disclosure and there is in any event a duty on any claimant not to mislead the court. This is just as true in proceedings like this as in the Commercial Court or Queen’s Bench. Indeed it is relevant, and I will return to this below, that the injunction sought was not just draconian it was deeply intrusive into the private lives of two adults with capacity. I will refer below to the European and domestic caselaw on the importance of the State not interfering into individuals’ marriage. In those circumstances the obligation for full and frank disclosure is as important if not more important, than in any other form of litigation. I appreciate local authorities are hard pressed, and poorly resourced, however the importance of ensuring the Court is possession of all the relevant facts at a without notice injunction application cannot be overstated.

 

 

 

19.          The starkest example of the failure of the evidence presented to court to properly reflect the true factual position is as follows. In her first witness statement dated 20 March 2019, filed to support the without notice application, at para 12 Ms Jones said;

 

 

 

 

“A new care agency started to work with KR three times a day 9:00. 12:00 and 17:00 and this has worked well intermittently. This is the first agency that has been able to persist with the situation and from 3-week period of recent records ST allowed the carers in on average 3 calls a week out of a potential 39 recorded calls see exhibit DL5. The carers go to each visit and if ST shouts and turns them away they go to the window and check on KR, they report that he may wave from his bed and they then leave and return for the next visit. When asked, KR states that he wants the carers to continue and that he wants to go out with his carers when the hoist is fitted.”

 

20.          This is a paragraph that would cause any judge deep concern about the safety of a seriously disabled man who was on the face of the evidence being isolated from his carers on a very large number of occasions. Surprisingly, the bundle I was given did not actually contain the exhibits to the witness statements, but I was handed DL5 in court. That was a note which was produced at a meeting that Ms Jones had had with the manager of CSL. What this note made clear was that twice every week CSL had produced no information about the number of visits, and whether ST had prevented access or not. This immediately undermined the evidence referred to above that on average ST had only let in the carers three times each week. There were 6 wholly unaccounted for visits, where there was no evidence that ST had refused access. Ms Jones could not explain why there were two unaccounted for days. Further on close scrutiny during cross examination it became clear that the average of access only being allowed three times a week was not even sustainable on the days on which there was information.

 

 

 

21.          There was also a paragraph in Ms Jones’ first witness statement which said that the MARAC professionals meeting had agreed that there was a “very real risk of accidental fatality”. However, when the minutes of the meeting were examined in Court (after the disclosure referred to above), they did not support this sentence.

 

 

 

22.          I am sure that Ms Jones was not seeking to mislead anyone, but there was a lack of attention to the background documents, and a failure to present the full picture which is very concerning

 

 

I’ve drafted my views about the beginning of paragraph 22 about 8 times, and can’t find a safe way of expressing what I think. So I’ll say nowt.

 

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Bullish but not bullying? UNDER PRESSURE

Posted on February 7, 2019 by suesspiciousminds

Couldn’t decide between my two titles here, so you get a job lot.

 

I do like a case name that tells you something about the nature of the case, so G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019) told me it was probably going to be worth a read.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

 

It involves an appeal from Sheffield Family Court about the decision to make Interim Care Orders involving two children (both said to be young, and one specified as being four). The children had been removed into Police Protection following an alleged fracas where mother had gone to the father’s house after father had reportedly kept the four year old for longer after his week’s holiday contact than had been agreed. The police had arrested mother and members of her family.

 

There was said to have been some history of domestic abuse between the parents, both making allegations against the other.

 

The interim threshold statement referred to the incident on 21 January, the children having been taken into police protection, the reports of past violence between the parents, the father’s lack of cooperation with previous assessments, alleged violence between the mother and her present partner, and a school referral to social services arising from M’s poor attendance. The papers consisted of a statement from the social worker, who had no previous knowledge of the family, and the police protection authorisation record, which described the events of 21 January

 

The case was listed for an Interim Care Order hearing, against the backdrop of the Police Protection period ending that day and thus a decision needing to be made. The Court called the case in, asked for people’s positions, gave some views, allowed a brief period for instructions to be taken, and the mother did not contest the making of the Interim Care Orders.

 

[In fact, she consented, but it is now permissible to appeal against a consent order – that did not used to be the case, but the law changed following some high profile big money ancillary relief cases – ie  CS v ACS 2015  ]

 

My summary above doesn’t quite capture what happened though, hence the appeal. The appeal was on the basis that the views expressed by the Court went beyond robust case management and into undue pressure and that the mother’s decision not to contest the making of Interim Care Orders was as a result of feeling that she would not get a fair hearing.

 

(I note that mother’s counsel, Mr C,  is said to be 2016 call, which means that he was relatively junior and might also mean that he was in his early twenties, although of course some people join the Bar later in life.  Part of the argument at appeal was whether he was in any way to blame, which he was not. I point those things out merely because they MAY wrongly have given the impression that he could be steam-rolled in a way that a barrister with 20 years call would not have been. )

 

Here is a flavour of it – the judgment gives a pretty thorough blow by blow account if people want to read it

 

JUDGE: Yes. Mr [C], what evidence do you what to hear?

 

Mr C: Certainly the – the social worker as a – is a starting-point, depending if the application is to be heard today or on a – on a different day.

 

JUDGE: Oh, it’s got to be heard today. As you know, the PPO runs out.

 

Mr C: Well —

 

JUDGE: — and if it is heard today I shall certainly make findings that your client will be stuck with.

 

 

And

 

 

JUDGE: I should ask, but it’s bound to be supported by the Guardian. If I go ahead and make findings – which inevitably I will, because something happened at the house on the 21st of January – she is stuck with those, and it could impact on how the police look at it and everything. Potentially, the situation is – is very risky for her and I – I say that so that no-one’s left in any doubt that if I hear the evidence, which I’m more than willing to do – my list is empty for this afternoon – I shall make findings and she’ll be stuck with them.

 

Mr C: Well, in light of that indication, your Honour, I will probably have a further word.

 

JUDGE: Well, you can turn your back and just check if she wants to. She is in a very very precarious position because she undoubtedly went to the house that belongs to the father, she undoubtedly retrieved, late at night, her daughter. It may well be that [he] kept the child when he shouldn’t have done. but I don’t know about that yet. It may be something I have to make a finding about – that – what caused her to act in this manner, but this is a case where, inevitably, I’m going to make findings, and it doesn’t take rocket science to realise that if you grab a child in the – late at night when that child should have been in bed asleep – that that is significant harm. I don’t think there’s any question about it.

 

Mr C: Well, your Honour, mother’s position would be that it was a – a choice between two difficult decisions that evening —

 

JUDGE: Oh, nonsense.

 

Mr C: — and that she had to take steps to safeguard the welfare of her daughter.

 

JUDGE: No, that’s not the way that you go around it, Mr [C], If that is the preposterous proposition you’re putting to me, it’ll fall on deaf ears.

 

 

And

 

JUDGE: Yes. Mr [C], I’m doing this to try and assist your client, not for any other reason, so it’s up to her.

 

Mr C: Well, I do ask your Honour for the matter to be stood down so that I can take proper instructions rather than rushing the mother into a – into a decision on that.

 

JUDGE: Yes. Well, I must say, father’s taken the only decision, in my view, that he should take, particularly now I know the girls are placed together. I would have had quite a lot to say if they weren’t and it would have impacted on my decision, but father’s taken the only standpoint – obviously I’m not making any findings against him because he’s accepted the inevitable.

 

It’s quarter-past now. I’m very willing to hear this but I want your client to be very much aware that I shall probably send my findings, if I make any, to the police and require it goes to CPS and – and see what happens. This is not the sort of situation that it seems to me, Mr [C], should be permitted to happen without some consequences.

 

MR [C]: Yes, your Honour.

 

JUDGE: Right, it’s quarter-past now, I’ll give you – no later than 25 past.

 

I don’t know if mum could possibly have persuaded the Court that her actions in going round to father’s house to get her child back late at night were justified and that in any event, it would not be proportionate to put two children in foster carer as a result of that, but it is an argument that she was strongly pressured into not making.

 

At the appeal, the mother’s case was

 

 

14.Ms Helen Compton’s distilled submission to us is that the mother was deprived of a meaningful opportunity to oppose the making of the orders. The judge gave the impression of having prejudged the threshold and the outcome and she exerted undue influence on the mother in a number of ways, including by repeatedly warning her that she would be ‘stuck’ with adverse findings and by threatening to refer the matter to the police and the CPS, something that was bound to place the mother under extreme pressure. Overall, the judge’s approach overbore the mother’s will.

 

 

At the appeal, the Local Authority put the case in this way

 

“Following her discretionary case management powers and with a clear view on the Overriding Objective the learned judge informed the Mother and her Counsel that there was time for the Court to hear the matter as a contested hearing that afternoon and of the possibility of threshold findings being made against her.

 

However firm the learned judge may have been, it did not amount to duress and it was incumbent upon the Mother’s legal representatives to raise these issues with the judge. In the event that judge refused to hear the case at all a judgment should have been requested. In the event that there had been a contested hearing, the Court would have provided a judgment (probably ex tempore) and clarification could and hopefully would have been requested. This matter was agreed and no judgment requested.

 

The learned Judge did state a view on the initial application but this was within her discretion to do. The Learned Judge also provided the Mother with time over lunch to take instructions, further time when Mr C asked for it and stressed that she was willing to hear the case that afternoon. No application was made by the Appellant Mother to seek an adjournment or agree an Interim Order pending listing this matter for a contested interim hearing. This exercising of the Judge’s case management powers did not amount to a breach of the Mother’s Article 6 and 8 Rights.

 

Both parents attended at court represented, the Mother by both Counsel and instructing solicitor. It is perhaps surprising that neither of the Mother’s fully qualified legal team sought to challenge the Judge in the event that they felt the Judge was being intimidating or exerting duress and express their views to that effect at the time.”

17.In her submissions to us, Ms Ford accepts that the transcript shows the judge to have been bullish, but distinguishes this from bullying. She does not accept that the mother was under duress. Professionals are used to judges expressing firm views and they should be able to deal with it, and where necessary stand up to pressure from the bench. There is nothing improper in a judge advising a party of the consequences for them of adverse findings being made at an interim hearing. Ms Ford accepted that one interpretation of the transcript supported the complaints now made; in the end she was not able to suggest any other possible interpretation.

 

The Court of Appeal weren’t very taken with the Guardian’s stance on appeal

 

 

20.Written submissions on behalf of the Guardian merely observe that the mother consented to the order. They do not attempt to address the criticisms of the conduct of the hearing. I find that surprising, as one of the functions of a Children’s Guardian is to take an interest in whether the process that leads to orders affecting the children is a fair and valid one

 

 

 

 

 

Conclusions

 

 

 

 

22.The overriding objective in family proceedings is to deal with cases justly, having regard to any welfare issues involved. The court is under a duty to deal with cases expeditiously and fairly and to manage them actively in ways that include “helping the parties to settle the whole or part of a case”. See FPR 2010 1.1(1), 1.1(2)(a) and 1.4(2)(g).

 

 

23.Judges can, and frequently do, indicate a provisional view to the parties. This is entirely proper and may lead to parties changing their positions. Provided they do so freely (even if reluctantly), there is nothing objectionable about this. However, judges must not place unreasonable pressure on a party to change position or appear to have prejudged the matter. As Stuart-Smith LJ said in Re R (above) at 130:

 

 

 

“A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when they are unwilling to do so.”

24.Measured against these principles, and making every allowance for the realities of practice in a busy family court, I regret that what occurred in this case fell well outside the proper exercise of the court’s powers.

 

 

25.This was an urgent application, which the judge rightly appreciated had to be decided that day. As she said, she had time available. It was a matter for her, given the practical constraints, as to whether to hear oral evidence: if she had been considering making a short-term holding order I would not have criticised her for not doing so, with any evidence needed to justify a longer-term order being taken on a later date.

 

 

26.However, that is not what happened. The judge was hearing an application issued that day, with the parents arriving at court for the first time, the social worker and the Guardian knowing little of the fraught family history, and the mother being represented by inexperienced counsel. Before Mr C could even manage to tell the judge that his instructions were to contest the order she told him that “… if it is heard today I shall certainly make findings that your client will be stuck with.” The only conclusion that the mother and her advisers could draw from this and similar statements (“very risky for her”; “a very very precarious position”; “inevitably, I’m going to make findings… – that that is significant harm. I don’t think there’s any question about it.”; “not… without some consequences.”) is that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. The judge then isolated the mother by saying, before learning the position of the Guardian, that “this application is bound to be supported by the Guardian”. When Mr C attempted to put a small part of his client’s factual case, he was met with derision: “Oh, nonsense”; “preposterous proposition you’re putting to me, it’ll fall on deaf ears.” Counsel for the local authority then intervened to say that her social worker couldn’t be questioned about events before she was allocated and that she would question the mother about why she waited until 36 hours after reporting matters to the police before going to the father’s house. Before adjourning at Mr C’s request, the judge further isolated the mother by saying that “the father’s taken the only decision, in my view, that he should take, … obviously I’m not making any findings against him because he’s accepted the inevitable.” Finally, she made an entirely gratuitous statement that “I shall probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens.” Whether or not that was an empty threat is beside the point.

 

 

27.This material amply substantiates the appellant’s case that her consent or non-opposition to the interim care order was not freely given, but was secured by oppressive behaviour on the part of the judge in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity. This ground of appeal succeeds. It is unnecessary to go on to consider the other grounds.

 

 

28.I also regret that the submissions made by the local authority, either supported or not challenged by the other respondents, show a failure to understand the nature of the overriding objective or the requirements of a fair hearing. The judge’s approach went far beyond “firmness” and cannot possibly be described as “assisting” the mother. Similarly, I would reject the suggestion that the fundamental unfairness of the hearing could have been cured by a more assertive response by the mother’s legal representatives. After what happened in the first part of the hearing, it is difficult to see how a fair hearing could have taken place even if the mother had maintained her opposition. The submissions we have received from the respondents show why the appeal needed to be heard. The consequence will be that the local authority’s application for interim care orders will be heard afresh, and not as an application by the mother for the discharge of existing orders.

 

 

29.A further matter, which arose during submissions, requires comment. The judge’s repeated references to the mother being ‘stuck’ with findings is to my mind one of the causes of concern. However, both Ms Compton and Ms Ford told us that this was a warning that in their experience is often given by judges at interim hearings. Neither sought to argue that there is anything improper about this. I do not share that view and I agree with the observations of Moor J on this point.

 

 

Mr Justice Moor, the second Court of Appeal Judge, reminded us that judicial decisions about matters at interim care order stage are not findings of fact, but decisions that on the section 38 standard that there are reasonable grounds to believe (at that stage) that such and such has occurred. That argument of course cuts both ways – it is a lower standard of proof that the Local Authority have to reach (on the balance of probabilities are there reasonable grounds to believe that this happened versus on the balance of probabilities is it more likely than not that this happened) but on the other hand such judicial decisions and views are not set in stone and should not be used in this way to discourage a parent from testing the evidence.

 

Mr Justice Moor:

31.I agree, and add the following in relation to one aspect of the matter.

 

 

32.During the course of the hearing, we were told that it was commonplace in certain courts to warn parents that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute. The implication was that these findings would then stand for all time. Indeed, Ms Ford, on behalf of the Local Authority told us that this would be done “to prevent the need to go over the same ground again” later in the proceedings.

 

 

33.It is important to remember that there is a fundamental difference between sections 31 and 38 of the Children Act 1989. Section 31 sets out what needs to be established before a court can make a full care order. Section 38(2) is in very different terms:-

 

 

 

“A court shall not make an interim care order or supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)”.

34.Section 38(2) does not require the court to make findings of fact to the civil standard, nor to be satisfied that the main threshold document is proved. Instead, the section requires the court to be satisfied that “there are reasonable grounds” for believing that the threshold in section 31 is made out. It follows that, at an interim hearing, rarely, if ever, will findings of fact be made that will have the effect of establishing the threshold at a final hearing. Accordingly, we consider that courts, if they do it at all, should be very cautious before making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure.

 

 

35.If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it will say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.

 

 

[If I recall correctly, the Courts have confirmed that this is the case even at a finding of fact hearing, that the findings made are effectively a section 38 finding and that it is vital at the conclusion of the case for the Court to actively consider and determine whether to make the same findings to the section 31 standard. Don’t quote me on that though, because I can’t locate the source authority – I just remember having been surprised to read it at the time. Fact findings always FEEL like a section 31 exercise, not an ‘are there reasonable grounds to believe this?’ exercise]

 

The Court of Appeal continued the interim care orders pending the case being reheard by a different Judge.

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Separating twins

Posted on January 4, 2019 by suesspiciousminds

 

 

There’s a notorious study from the 1960s, in which an American organisation, the Louise Wise Adoption Agency under the request of a child psychologist, Peter Neubauer, placed twins in separate adoption placements, with a number of different twin pairs, so they could be followed up by psychologists in later life to see whether they, as adults, had similarities (which would give credence to nature / genetic factors being the most dominant) or differences (which would give credence to nurture/environmental factors being the bigger influence on children). It’s the sort of thing that makes us shudder now.  And rightly makes us think that separation of twins is a huge, huge life-changing decision, never to be made lightly.

 

This case isn’t as bad as that, because the separation came about more by a combination of incompetence, lack of thought and dogma that adoption is the best thing always even if it means splitting twins, rather than just carelessly using children as unwitting experiments, but it is still bad.

 

Readers may remember Keehan J opening a can of judicial whup-ass on Herefordshire just before Christmas. After I finished writing THAT post, I found this judgment, which….well. You’ll see.

BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/76.html

 

1.I am concerned with two children, BT and GT who are twins who were born in 2010. It is almost impossible to imagine the circumstances in which it would be considered appropriate to separate twins and place them for adoption by different prospective adopters. This is, however, what occurred in this case and I have before me an application by a couple, whom I shall refer to as A and B, to adopt BT and an application by a single carer whom I shall refer to as C, to adopt GT.

 

 

2.As I shall set out in some detail, I am satisfied and find that the court is in the position of considering applications to adopt the twins in two separate homes because of the incompetence and serial failings of the local authority, Herefordshire Council, and the egregious behaviour of some of its former staff.

 

  1. The failings of this local authority have been utterly appalling. Whilst I accept the assurances of the director of children’s services and of the assistant director that significant and substantial reforms will be made and effected, no child should ever again be cared for in the manner BT and GT have had to endure at the hands of this local authority nor suffer the woeful lack of rational care planning. Further no prospective adopter should ever again have to endure the treatment meted out to A, B and C in this case.

 

This was a case in which twins born in 2010, were made the subject of Care Orders and Placement Orders (authorising them to be placed for adoption) in 2015 – the plan approved by the Court at that stage being that the Local Authority would search for an adoptive placement for the twins together for nine months, and if one was not found to search for a long term foster placement for them together.

 

 

 

 

22.On 19th March 2015 HHJ Hooper QC made all five children the subject of care orders and made placement orders in respect of BT and GT. Their court approved care plans provided for them to be placed together with a search being made for nine months for an adoptive placement and if the search was unsuccessful the following three months would be devoted to seeking a long-term foster placement for them together. There was no question of the local authority proposing, still less the court approving, a plan for the twins to be separated and placed separately whether in adoptive placements or long-term foster care.

 

 

23.On 10th April 2016, however, a team manager made the decision to place the twins separately for adoption. This plan was endorsed by a LAC Review held the following day. I shall return to consider these decisions in greater detail later in this judgment.

 

We aren’t given a huge amount of background as to the decision to make Care Orders in 2015. We know that the twins father was convicted of multiple sexual offences against children and that he is also serving a 21 year prison sentence. (para 5) and we know that 5 children were removed from the mother and made the subjects of Care Orders and that there were issues of neglect, domestic abuse and alcohol abuse.(paras 17-22)

 

The Judge, Keehan J, was faced at this hearing, with applications by two different adopters to adopt one of the twins each. By the time of the hearing, the children had been in those placements for over a year. The Judge had to decide whether to grant the adoption orders, meaning that the two children would permanently live apart, or to refuse them and move the children from those separate placements into presumably a foster placement together. Understandably the Court was more than vexed at being placed in this position after the event, when it would have been very unlikely to have sanctioned separation of the twins in the first place.

 

Let’s look at why that happened.

 

As we know, the social work team manager took the decision on 10th April 2016 that the children should be placed separately for adoption. Their foster placement, a joint one, broke down on 28th April 2016.

 

 

 

26.The allocated social worker undertook a sibling attachment assessment. The report, approved by the then team manager, is dated 7th July 2016: some three months after the decision had been made to place the twins separately for adoption. It is asserted by the local authority that the social worker, whom I shall refer to as D, gave an oral report on this issue but I do not know when nor to whom this oral report was given. Quite astonishingly and wholly contrary to good social work practice, there is no note or minute of the manager’s decision made on 10th April. Therefore, I do not know what material he considered when making his decision and I do not know the reasons or basis for the same. Thus, I do not know whether he considered the oral report of D. Moreover, I have had no explanation as to why it took D three months to write up her assessment.

 

 

27.I will return to this so-called assessment later in this judgment, but I note in the summary of her report D asserted:

 

 

 

“Having considered the legal, policy, moral and best practice guidance, it is essential that GT and BT have the opportunity of an adoptive family.

 

GT and BT’s care plans have remained to be one of adoption (jointly placed) for a considerable period of time. Over the period of 12 months, family finding attempts have not been successful.”

 

This does not reflect the court’s approved care plan which was for a 9-month search for an adoptive placement together to be followed, if unsuccessful, a by three-month search for a long-term foster placement together. I have been given no explanation as to why or how D in her assessment completely misrepresented the care plan: whether it was deliberate or just an error I do not know.

28.I am satisfied that the prospective adopters were unaware of the flawed decision making process relating to the separation of the twins until these proceedings seeking adoption orders in respect of BT and GT had been commenced.

 

GT was placed with prospective adopters in March 2017, BT in May 2017. The Local Authority ended contact between them, there being just two sessions of contact for twins (aged at that time seven) in a YEAR.

 

 

 

35.They did not then see each other again for seven and a half months until there was a contact visit on 27th October 2017 and then no contact for over four months until a visit took place on 4th March 2018. I do not understand how, why or when the hugely important decision was taken to so severely curtail, indeed deny, the children an ongoing relationship once they had been placed for adoption. For the avoidance of any doubt, it was the local authority which determined this level of contact. I make and intend no criticism of the prospective adopters.

 

 

The Local Authority accepted a large catalogue of failings at the Court hearing

The Local Authority: Actions and Failings

44.The admitted failings of the local authority which led to breaches of BT and GT’s human rights and those of the prospective adopters are set out in Annexe 1 to this judgment. These admitted failings are supplemented by further admissions of failings by the local authority, together with notes of the actions taken by or to be taken by the local authority to prevent, or at least, ameliorate the future risk of such failures of the system and of social work practice occurring. This schedule was prepared by Liz Elgar, the assistant director of children’s services and is set out in Annexe 2 to this judgment.

 

 

45.The admitted breaches of human rights and the schedule of failings of the local authority are extensive and grave. They relate to the whole operation of children’s services in Herefordshire. They are both systematic and the fault of individual social workers, team managers and line managers.

 

 

46.This said I commend the approach taken in this case by the new management team of children’s services, including in particular the Director, Chris Baird, and the Assistant Director, Liz Elgar, for the open and forthright manner in which they have responded to the divers criticisms made. I am reassured by their expressed commitment to a root and branch reform of children’s services in Herefordshire and a commitment to ensure that far more robust systems are in place to ensure compliance with good social work practice.

 

 

 

  1. The breaches of human rights may be summarised:

 

  1. i) a failure to undertake a thorough analysis of the need to change the care plans for the children and a failure to consider appropriately the consequences of separating the twins;

 

  1. ii) a failure to disclose in full detail the needs of, the challenging behaviours of and the past life experiences of BT or GT to their prospective adopters;

 

iii) a member of the social work team deleting references to the children’s challenging violent behaviours from the Child Permanence Reports (‘CPR’) and the Adoption Support Plans;

 

  1. iv) the wholly unmeritorious decision and issuing of a s.35(2) notice to remove BT from his placement with A and B;

 

  1. v) the undue stresses and strains caused to the prospective adopters by:

 

  1. a) the local authority’s flawed decisions; and

 

  1. b) as a result, these prolonged court proceedings which have had an adverse impact on BT and GT’s experience of family life;

 

  1. vi) the failure to consider properly the alternative plan for placing BT or GT in long term foster placements and to adhere to the court approved care plans;

 

vii) the failure to hold adoption reviews rather than LAC reviews (adoption reviews have an entirely different mandatory criteria to consider than LAC reviews: see Adoption Agencies Regulations 2005, regulation 36); and

 

viii) the failure of the Independent Reviewing Officer system to take any steps to secure any cogent care planning for the children and/or to protect them from the consequences of flawed and/or ill-considered decisions.

48.The schedule of supplemental failings set out in Annexe 2 may be summarised as follows:

 

 

 

  1. i) a failure in the original care plans to set out what the local authority would do if a placement together could not be found after 12 months;

 

  1. ii) a lack of management oversight;

 

iii) a failure to follow the court approved care plan to a correct conclusion;

 

  1. iv) a failure in the decision-making process to place the twins separately for adoption;

 

  1. v) the failure to acknowledge the significance of maintaining the legal sibling relationship of the twins;

 

  1. vi) the failure to acknowledge the legal relationship between BT and GT and their older siblings;

 

vii) the failure to record the reasons why a manager made the decision to place the twins separately for adoption on 10th April 2016;

 

viii) the failure of the LAC review on 11th April 2016 to consider pursuing a plan of long term foster care or commissioning further expert report(s) on the issue of placing the twins separately;

 

  1. ix) the failure to promote contact between the twins once they had been placed for adoption;

 

  1. x) the failure in applying full and accurate information in the CPRs and Adoption Support Plans including the adoption team manager wrongly and inappropriately deleting information about the twins challenging behaviours;

 

  1. xi) the failures of the IROs to take any steps to oversee and/or challenge the local authority’s decisions;

 

xii) the failure of the ADM decision making process, namely to fail to consider the impact on the children throughout the whole of their lives of separating them; and

 

xiii) the failure of the local authority, as a result of poor record keeping, to provide accurate evidence to the court.

49.Most regrettably all these admitted failures were not the end of this long litany of errors and misrepresentations. On the second day of the final hearing the local authority discovered there were documents and records, which contrary to previous orders and/or the local authority’s general duty of disclosure, had not been disclosed to the court or to the parties. When the disclosure was made it amounted to some 200 pages. I gave the parties the whole of the following day to read and digest the documents disclosed and to take instructions.

 

 

50.It caused the prospective adopters considerable distress to discover that within this disclosed material were matters relating to the children which had not previously been communicated to them by the local authority nor had it been communicated to the adoption agencies supporting the two sets of prospective adopters. [REDACTED TO PRESERVE CONFIDENTIALITY].

 

 

51.The emotional pressure on the prospective adopters was great enough without the added burden of having to receive and cope with the new information revealed. I do not understand the explanation offered as to why this material had not been disclosed earlier, other than it resulted from yet another error by an employee of the local authority. I received no explanation as to why the information revealed had not been previously communicated to the prospective adopters or their supporting adoption agencies.

 

 

However, over and above that, emerged the actions of the social worker who had written the sibling assessment (after the conclusion of proceedings) that formed the basis of the decision to separate these twins

 

 

 

52.It then emerged that the then social worker, D, the author of the sibling assessment had misquoted the opinions of Dr Mair Edwards, a consultant psychologist, who had prepared a report on the children for the purposes of the original care proceedings. The extract contained in the sibling assessment of July 2016 reads as follows:

 

 

 

“Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””

 

It will be noted three dots appear about halfway down the extract indicating some material had been omitted

 

One hopes, of course, that the three dots are just indicating that there was extraneous and irrelevant information contained which has been snipped out to provide an accurate and thorough summary of what Dr Edwards had said.

 

Oh, dear.

 

Counsel for the children’s guardian, Mr Kingerley referred me to Dr Mair Edwards 2014 report. The passage omitted from the above extract reads as follows:

 

“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.”

53.The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not.

 

 

54.I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect.

 

 

The Judge went on to explore the other expert advice that the Local Authority had (quite properly) obtained when deciding whether to separate twins and if so, how to best manage this so that the damage could at least be reduced (but sadly had largely ignored)

55.The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of 12th April 2016. On the issues of separation and future contact between the twins if the decision was made to place them separately she said:

 

 

 

“Making the decision that twins should be separated is problematic. Although each child’s needs may be better met in separate families, they have been constant companions to date, and will find separation confusing and stressful. In addition they share a common heritage and history. The complexities of these children’s circumstances and individual needs should be considered at length and in detail, so that a decision can be made which will be of most benefit to both the children.

 

If they are to be separated, it would seem vital that there is ongoing contact between them. Both children would find the separation difficult in the short term especially, and would need the reassurance of frequent contact.

 

Ongoing contact would rely on two adoptive families both being willing to commit to this. If one child is adopted and one remains in foster care, then contact with the adopted sibling needs to be carefully considered, due to the link to the birth family.

 

Separation would obviously need to be done with a carefully constructed programme that takes both children’s needs into account.”

56.In light of this clear recommendation I am at a loss to understand why the local authority did the exact opposite. Prior to placement with the prospective adopters the twins had a ‘see you later’ contact session and that over the succeeding eleven months they had contact on just two occasions. The local authority was unable to explain who had made this decision for there to be very limited contact between the twins post placement or why this decision had been made.

 

If, like me, you are waiting to see what the reasons given by the Local Authority for the need to separate the twins in the first place was then you, I and the Judge were all equally frustrated that the reasoning just never materialised

 

 

 

 

57.The catalogue of the local authority’s errors and failings in this case is troubling and hugely lamentable. I do not minimise any of the admitted breaches of human rights and/or the other admitted failures by highlighting what I consider to be the most egregious failures, namely:

 

 

 

  1. i) the deletion of important and highly relevant information from the CPRs and Adoption Support Plans by the adoption team manager. This could only have been done to mislead the prospective adopters about BT and GT’s respective behaviours and needs with a view to increasing the prospects of them agreeing to a placement of BT or GT with them;

 

  1. ii) the deliberate and misleading selective quote from the report of Dr Mair Edwards in the so-called ‘sibling assessment’. I am satisfied that the social worker began this apparent assessment with the end result, that of separating the twins, already decided and wrote an assessment to support that conclusion. I do not understand why this assessment was written up three months after the decision had been taken on 10th April 2016 to place the twins separately for adoption or why this decision was not stayed pending the completion of a sibling assessment;

 

iii) the failure to give full and frank information about the twins to their prospective adopters and their respective supporting adoption agencies;

 

  1. iv) the complete and utter failure of the IRO service to satisfy any of its statutory duties in respect of BT and GT. The IROs and the IRO service did absolutely nothing to protect and promote the welfare best interests of the children and did nothing to challenge the local authority’s dreadful and, at times, irrational decision making and care planning; and

 

  1. v) the failure for there to be any note or record of the matters considered, the documents read or the reasons for taking the life changing decision to place the twins separately for adoption taken on 10th April 2016. It is astonishing given the highly unusual and momentous nature of the decision.

 

70.Ms Elgar, the assistant director of children’s services, and Ms Leader, the team manager, gave relatively brief evidence. Ms Elgar had been in post from June 2018 and Ms Leader became the team manager in July 2017. They both offered profuse apologies to the prospective adopters for the actions and failings of the local authority.

 

 

71.Ms Elgar could not explain how or why the material which had been disclosed at this hearing had not been disclosed at an earlier time or had been ‘lost’ by the local authority. She recognised the local authority’s serious shortcomings and sought to assure the court that action had been, and would continue to be, taken to resolve the identified and admitted failings of the local authority. She accepted the deletions from the CPRs and Adoption Support Plans resulted from a deliberate and wrongful act by an employee of the local authority.

 

 

72.It was Ms Leader who, having heard certain observations by me, checked the electronic records and discovered a considerable amount of material had not been disclosed. She readily accepted the decision to terminate BT’s adoptive placement in late 2017 had been wrong and the whole episode had been badly dealt with by the local authority. Mr Noble had noted that some of the documents disclosed in the hearing related to events some months or even up to two years before but had only appeared on the local authority’s computer system within days of each other in February or March 2018. When asked why this was, Ms Leader said that the previous social worker, D, had got seriously behind with her administration and had thus spent the last few days of her employment uploading two years worth of notes, records and other documents onto the system. When asked how this could have been allowed to happen, she could give no answer other than to say it was not good practice. This ranks as a masterful understatement and was a completely inadequate response. For the last seven or eight months of the social worker’s employment in children’s services, Ms Leader had been her line manager and had taken no effective steps to remedy this extraordinary state of affairs.

 

 

73.Finally, Ms Leader confirmed that no note, record or document had been found relating to the decision made on 10th April 2016 that BT and GT should be placed separately for adoption

 

The Court then was faced with what to do for these twins in the future, it having become abundantly clear that they ought not to have been separated, but that the independent expert analysis was now that they had settled with their prospective adopters and moving them would be profoundly damaging to them.

 

88.I have struggled with the concept that a court could find that it was in the welfare best interests of twins to place them separately for adoption. From the time the case first came before me up to and during the course of this final hearing I was keen to find a route by which BT and GT could be reunited in a single placement. If this proved impossible to achieve, I was keen to find a legal framework, short of adoption, which could afford them the degree of permanence, stability and security which I entirely accept they both so desperately require.

 

 

89.For the avoidance of any doubt, as I observed in the course of the hearing, in expressing these views I did not for one moment doubt the love, commitment and care which A, B and C have afford to BT and GT: quite the reverse. I wholeheartedly commend both sets of prospective adopters for the enormous great love and devotion they have shown to BT and GT, for their unswerving commitment to them and for the superlative care they have given BT and GT. It is plain that, notwithstanding the grave harm and damage they suffered in their past lives, they are thriving beyond expectations in the care of A and B and C. The stoicism each of these adults have displayed in the course of these lengthy proceedings has been admirable.

 

 

90.Nevertheless, BT and GT are not just simply siblings they are twins. In making adoption orders in favour of two separate sets of prospective adopters, I would sever the legal relationship of BT and GT as brother and sister. Further I would sever their legal relationship with their elder siblings. Whilst the latter is very important, it is the former consequence of adoption that principally troubles me.

 

 

91.There is no question of it being a realistic option in the welfare best interests of the children for either of them to return to the care of either parent. The mother manifestly is not capable of caring for them and neither is the father. In any event, he is serving a very substantial custodial sentence and is convicted of offences of child abuse.

 

 

92.Is there any other realistic placement together or apart? On the basis of the powerful and compelling evidence presented by the Anna Freud Centre and the most impressive and persuasive oral evidence of Dr Morris and Ms Mautner, supported by the children’s guardian and the local authority’s assistant director, and the compelling evidence of the prospective adopters, the answer is a resounding no.

 

93.I am of the view that if this local authority had exercised good social work practice and exercised a modicum of child focused judgment in its decision-making processes, there was, in my judgment, a real possibility that the children could have been placed and lived together for a substantial period of their childhoods. They had, I note, lived together in their foster placement for nearly three years albeit not without presenting their foster carers with immense challenges from time to time. Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT’s lives.

 

 

94.I am satisfied on the totality of the evidence before me that I cannot now contemplate moving either BT or GT, or both of them, from their placements without causing them serious harm and, potentially, lifelong grave harm. They are well settled with their prospective adopters and are plainly well integrated into what they consider to be their respective families. They are, for the first time in their lives, allowing themselves to believe they have their forever family. If one or other of them or both of them were to be moved, I accept the evidence of the Anna Freud Centre, that one or both of them would be devastated. They would suffer a sense of considerable loss, their behaviour would undoubtedly regress and they are likely never to allow themselves to trust a future carer or others involved in their lives: even if not likely, there is a substantial risk this would be the consequence of a removal.

 

 

95.To embark on the removal of the children with all the attendant serious adverse consequences cannot, in my judgment, be in the welfare best interests of either BT or GT. Accordingly, I am now persuaded and satisfied that both BT and GT must remain in the care of their respective prospective adopters.

 

The Court was driven to make the adoption orders, though not without a great deal of anguish.

 

Damages claims were agreed and settled.  (I think they seem very low for the twins, but that’s a personal view and opinion rather than a legal one, as damages is not my field)

 

  1. The damages agreed in satisfaction of A and B’s HRA claim were £5,000.00. The same sum was accepted by C in respect of her HRA claim.
  3. When considering the infant settlement approval of BT and GT’s respective claims for breaches of their human rights I had the benefit of advice on quantum by Mr Kingerley dated 16th November 2018. The local authority offered in settlement of the children’s claims the sum advised by counsel, namely £20,000.00 each. I was satisfied in all the circumstances of this case and having regard to recent authorities on the issue of HRA damages, that these were entirely reasonable damages to offer just satisfaction to both children. Accordingly, I approved the settlement achieved for BT and for GT. Further I made the declarations of the breaches of human rights of BT, GT, A & B and C in the terms agreed and set out in Annexes 1, 3 and 4 to this judgment.

 

 

 

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Multiple failings, IRO and whistleblowing

Posted on December 10, 2018 by suesspiciousminds

 

It is part of the Christmas tradition of Suesspicious Minds that some Local Authority takes an almighty judicial kicking in a published judgment,  and this year I’m afraid it is Herefordshire behind the door on the advent calendar.  This is a damning judgment by Keehan J

 

 

 

2.The care of and care planning for both these young people by Herefordshire Council has, over the last ten years or so, been woeful.

A & B (care orders and placement orders – failures) [2018] EWFC 72 (30 November 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/72.html

 

Herefordshire County Council obtained Care and Placement Orders on two children, A and B in May 2008. At that time, A was 11 and B was 10 (that sounds immediately to me like a highly optimistic order…)

 

Neither were placed for adoption, and the plan of adoption was abandoned by the Local Authority in September 2009. No applications were made to revoke the placement orders for A, and it discharged on her 18th birthday. An application was finally made to revoke the placement order for B, when she was 17 ½, it being revoked the day before her 18th birthday.

The girls were separated in 2013, and nobody was really able to explain to the Judge why that was

 

This was followed by a LAC Review held on 13th December 2013 at which it was decided to place A and B in separate foster placements. I do not know the reasons why this important decision was made nor the evidence on which it was made. A and B were never again placed together. I have no explanation as to why not.

 

 

 

 

22.On 19th November 2016 A and B had their first face to face contact since 2014. This has been requested by A who was pregnant.

 

 

23.On 12th March 2017 A gave birth to her first child, F. She had no secure or stable accommodation. A whilst pregnant and after F was born had been living in an annexe at her former foster carer’s home. In May 2018 A reported to the local authority that she and F had been evicted by her former foster carer and that she had nowhere to go. The local authority’s response to the plight of this young mother and care leaver was wholly inadequate. The response was so poor that, the Head of Service, Gillian Cox, accepted that the local authority had failed A and her daughter.

 

 

 

 

26.Between December 2013 and 1st September 2017, when she had attained her majority, A had had at least 5 changes of placement in various different areas of the country. There is no doubt that the instability in A’s life during these formative years, including the numerous changes of placement, have caused her significant emotional and psychological harm.

 

 

27.Between February 2016 and 6th March 2018 B endured 7 changes of placement in various different areas of the country. The harm suffered by B as a result of these changes in placement in terms of her emotional and psychological wellbeing are incalculable.

 

 

28.Between November 2008 and May 2018 A has had 6 different social workers allocated to her case. Between June 2014 and August 2018 B has had 8 different social workers allocated to her case. I accept the reallocation of case in October 2016 to a social worker in the 16+ Team was inevitable. There is, however, no good or cogent explanation for the high turnover of the other social workers which, to put it mildly, must have been unsettling and unhelpful.

 

 

29.From the time the children were made the subject of care orders and placement orders in February 2008 until October 2018 this local authority has had eight different independent reviewing officers (IRO) responsible for the oversight of their care plans.

 

 

(In 25 years of practicing family law, in various different local authorities, I don’t think I’ve MET 8 different IROs, but these girls had 8 different ones allocated to them at various points…)

The Head of Service filed a statement setting out the admissions that the LA made as to their failings in this case

 

 

30.I was so concerned at the failures of the local authority in respect of A and B that I ordered Ms Cox, the Head of Service, to file a statement setting out an explanation for the same. Her statement is dated 1st November 2018.

 

 

31.In respect of A, Ms Cox said as follows:

 

 

 

“In my view our service has failed to support [A] as I would expect since she first became homeless and in particular I would identify the following:

 

 

  1. In May when [A] first contacted our team to say that she was homeless we should have offered her supported lodgings accommodation in Herefordshire with [F] on a temporary basis whilst a longer term solution was identified. We should also have pro-actively supported [A] to search for private rented options in Birmingham and made it clear to her that we would financially support her with a bond and act as a guarantor if required.

 

 

  1. As time progressed and [A] continued to ask us for help and was not able to obtain suitable accommodation for herself in Birmingham we should have revisited these options and again offered her short-term solutions in Herefordshire and proactively supported her to find private rented accommodation. On the 15th June [A] specifically requested to return to Herefordshire but I can find no evidence of this being responded to which is unacceptable.

 

 

  1. The situation should have been escalated through Heads of Service to our Assistant Director and Director who have all asked to be kept informed of any young person who is placed in Bed and Breakfast accommodation. In the turnover of team managers and Heads of Service this expectation was not understood.

 

 

  1. On the 18th June [A] was informed that the local authority decision was that we would not pay a bond for her to secure private rented accommodation for her. This was not the case as this was agreed by the Head of Service when she was made aware of the situation. It is concerning that the team lack clarity about the support they are able to offer and did not escalate the situation earlier.

 

 

  1. There was a delay of almost a month in authorising a placement request made in July and this is unacceptable. The delay was due to further information not being provided to the Head of Service but in the circumstances the Head of Service should have been more pro-active in gaining the information she required.

 

 

  1. On the 11th October the personal advisor supported [A] and [F] to move from the Travel lodge to Northbrook hostel but did not look around the shared facilities. She described the accommodation as “basic” but did not raise concerns about the suitability of it for [A] and [F]. Having seen the photographs that [A] sent via her legal representative I was appalled by the state of the accommodation she was living in and was very clear that this was unsuitable and she should not have been left there.

 

  1. [A] is currently living in a supported lodging placement in Herefordshire with her daughter, [F]. She moved there on Tuesday 23rd October as an interim arrangement whilst suitable private rented accommodation for [A] and [F] is sourced in Birmingham. I received photographs and an email that [A] had sent her legal representative on the 23rd October and I was appalled at the state of the accommodation that she was living in. I telephoned [A] directly myself and asked if she would be willing to move to a supported lodging placement in Herefordshire if I could arrange that whilst we sorted out a suitable place for her to live in Birmingham. [A] was concerned about moving away from Birmingham but I was able to reassure her that this would be for just a short time. [A] agreed and so I made arrangements for our fostering team to find a placement for her and [F] and for her personal advisor to go to Birmingham to collect her that day.

 

  1. [A] was supported by her personal advisor to view flats in Birmingham on Thursday, 25th October and found a flat that she liked in an area that she is happy to live in. Herefordshire Council has paid 6 months’ rent up front and all relevant administrative fees to enable [A] to move into the accommodation. [A] will pay the housing benefit that she receives to the local authority as she receives it. At the time of writing this statement the plan is that [A] and [F] will move into their new home on Friday, 2nd November.

 

  1. [A] will continue to receive the support of her personal advisor. She is being referred for “floating support” and the most suitable provider for this is being investigated. The local authority will fund this support if [A] is not entitled to receive the support at no cost.”

32.In respect of B, Ms Cox observed in respect of the current placement that:

 

 

 

“[B] continues to live in a supported lodging placement with her boyfriend and his mother. She has lived there since March 2018. She is reported as happy living there although understands it is unusual to be living in the same home as her boyfriend at such a young age and is keen to move to live independently soon after she turns 18. She has been supported to register for housing and in the meantime can remain where she is. [B] will continue to receive the support of her personal advisor.”

33.I was told by Ms Cox that substantial steps have now been taken by the local authority to ensure:

 

 

 

  1. i) the mistakes and serious errors made in respect of A and B are not suffered nor endured by any other child or young person in the care of Herefordshire; and

 

  1. ii) far more robust procedures are now in place to ensure issues are escalated to more senior managers and, where appropriate, to the assistant director and/or the director of children’s services.

 

 

The Judge was concerned that the IRO system, which should have tackled these failings and drift, and got the LA to apply to revoke the placement orders and tighten up their planning for these girls (including ensuring that they had contact with one another) had not done so. He ordered a report from the Head of the IRO team

 

 

35.Accordingly I ordered the Head of Service, Safeguarding and Review (i.e. the head of the IRO service for this local authority), Cath Thomas, to file a statement. I am grateful to Ms Thomas, as I am to Ms Cox, for providing the court with a statement dated 1st November 2018. I regret to note that the statement contained a number of matters which caused me very profound and grave concern.

 

 

36.The statement of Ms Thomas concluded with the final paragraph:

 

 

 

“It is very clear that the issue of revoking [B]’s placement order continued without resolution for a significantly long period of time, both prior to and since the data error was realised in early 2016. This length of delay is absolutely unacceptable and I apologise unreservedly to [B] and her sister. The IRO service failed to fulfil its statutory responsibilities to [B]. I failed to robustly challenge the views of my assistant director at the time, which I recognise I should have done and as head of service I take full responsibility for these failings and apologise unreservedly to the court.”

 

This is a frank acceptance of a proper degree of responsibility by Ms Thomas. I accept her apology without reservation. Some of her actions or more properly her lack of action may be explained or, at least, put into context by a number of events set out in her statement which I shall now turn to consider.

37.In the autumn of 2008 Children’s services in Herefordshire moved from paper files to electronic records. It was not discovered until January 2016 that the placement orders made in respect of both children had not been recorded on their electronic records. This may explain why subsequent IROs did not raise the issue of revocation of these orders, but it does not explain why the IRO at the time the care plan was changed in early 2009 from one of adoption to long term fostering did not do so.

 

 

38.Ms Thomas asserted that in an unrelated case an IRO had concerns about a child’s case and wished to obtain independent legal advice and/or refer the matter to Cafcass. She said she raised this issue with the then senior lawyer and the then assistant director in January 2017. The response from the assistant director to Ms Thomas was that she was not to seek independent legal advice nor to refer the matter to Cafcass. She was further told that if she did not comply with this ‘advice’, disciplinary procedures would be invoked. Ms Thomas asserted that this assistant director did not recognise the independent nature of the IRO service.

 

 

39.It is not for me to determine the truth of these assertions, not least because I have not heard from the former assistant director. The council’s legal department did, however, immediately upon receipt of Ms Thomas’ statement invoke a whistleblowing investigation which has been reported to the Chief Executive of the local authority and members of the council. I note that the then deputy county solicitor agreed with Ms Thomas’ recollection of events.

 

 

40.Ms Thomas asserted that it was because of the ‘advice’ given by the former assistant director that she did not escalate the case of A and B beyond the Head of Service level, did not seek to obtain independent legal advice and/or refer the matter to Cafcass. As Ms Thomas readily acknowledged this was, to say the least, deeply regrettable.

 

 

41.The former assistant director left this local authority in March 2018.

 

 

Obviously the Judge did not hear from the former assistant director who allegedly told an IRO that escalating a complaint about a child’s case would be treated as a disciplinary matter, so there is not a finding as to whether or not that happened. (He notes, however, that the Deputy County Solicitor agreed with what Ms Thomas was alleging)

 

So we can’t say that this actually definitively happened, but if it DID, then there’s a complete failure to understand the role of the IRO and how vital their independence is. The Judge set out the framework and the importance of independence and the ability for IROs to obtain independent legal advice in detail, concluding this

 

 

 

 

50.I am appalled at the manner in which and the serial occasions on which the social workers and their managers have failed these two young people. The fact that I have chosen in this judgment to focus on the role and actions of the various IRO’s should not be taken in any way to diminish the failures of the social workers and/or their mangers in this case. Rather the failings of the IROs has been so stark and grave that, in my judgment, it was appropriate to focus on the failings of the IROs and the IRO service in this case.

 

 

51.Once a court makes a care order it entrusts, as by statute it must, the future care of the child to the local authority. The essential safeguard the court and the public at large have that a local authority will be a good corporate parent is the function and role of the IRO. Any obstruction of an IRO performing their statutory role or any diminution in an IRO, or their manager, feeling empowered to do so, is a matter of the utmost consequence. For otherwise a looked after child is subject to the vagaries of social work practice and the local authority’s different pressures and priorities. The IRO is, or should be, the child’s protector or advocate. If the IRO is silenced or pressured not to act as the child’s interests demand and require, it is the child who will suffer – just as these children, A and B have suffered.

 

 

 

Conclusions

52.This local authority, as it has accepted, failed both young people in the errors made by its social workers and their managers over a very prolonged period of time.

 

 

53.The IROs failed them on a serious and serial basis.

 

 

54.I entirely accept and acknowledge that in these straitened financial times all local authorities are stretched. Furthermore I recognise that this local authority, like very many around the country, have difficulties recruiting and retaining social workers. As a consequence many social workers have to carry very heavy case loads, may not have sufficient experience to deal with the more complex cases and/or have limited time to work on a particular case.

 

 

55.These difficulties, however, do not begin to explain the wholesale failure of this local authority, in its role as a corporate parent to plan adequately or appropriately for the care of these children. I simply do not know or do not understand why the care plan was changed from adoption to long term fostering in 2009. The explanation given in B’s 2018 Care Plan is plainly false or, at best, inaccurate.

 

 

56.This means that neither A nor B can now be given a clear and cogent explanation of why they suffered such instability when in the care of this local authority. I find this to be profoundly regrettable.

 

 

57.The fact that the local authorities are under financial pressures, and there too few social workers who carry too many cases, increases the importance of the role performed by the IROs. When it is known deadlines may be missed, visits not undertaken, assessments not completed or other actions in furtherance of a child’s care plan not addressed, the IROs must take active steps to ensure a child’s welfare and future care is not disadvantaged by these omissions.

 

 

58.Whatever opposition or obstruction the IRO or Head of Service faced from a local authority, the IROs and their managers must remember that their first and foremost duty is to the children and young people that they serve. If this is ignored or obstructed, it is only the children or young people, who are our future, who will be harmed.

 

 

59.The clear message must go out that IROs serve a vital and essential function to ensure that a child’s or a young person’s interests are met post the making of a care order or other orders. If those functions and roles are not exercised in a clear, robust and untrammelled fashion, the children or young people will suffer.

 

 

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You’ll find us all, doing the Lambeth Walk (oy!)

Posted on September 10, 2018 by suesspiciousminds

 

Gosh, it’s been ages.  Not been any juicy cases to write about, as the big beasts of the High Court are all on holiday, but this is an odd one.

 

It is a Court of Protection case, involving a woman who lacked capacity and whether she should be transported back to her home country of Colombia, interminable wrangling about the costs of transporting a wheelchair, a Court hearing where nobody shows up much to the Judge’s chagrin, and an eventual description of the approach of the public bodies as ‘verging on petulant’  with costs orders following.

London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 (31 August 2018)    

http://www.bailii.org/ew/cases/EWCOP/2018/14.html

 

  1. The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.

 

Bear in mind that this woman was ready for discharge in 2014 and the unit she was in was costing £2,000 per week, there ought to have been at the very least a financial incentive to move this along and get her back to Colombia where she wanted to be.   It has cost nearly a third of a million pounds to keep someone in a place where she didn’t want to be, when she could have gone back to her home country.

(Having been rebuked on Twitter during the World Cup for conflating Columbia – the city, with Colombia the country, I am spelling it correctly during this piece, although the judgment does not)

 

The Judge captures the human misery of this awful situation very well.

 

  1. There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.

 

  1. Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

 

Some of the hearings in this case were just a debacle

 

 

  1. At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.
  3. In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.
  5. At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.

 

Bear in mind that the unit was costing £2000 per week, and that the hold-up was the cost of flying a wheelchair that she needed out with her, this is just crazy.  Even if you paid for the wheelchair to go first class, that’s just 2-3 weeks of the unit. And as the Judge rightly noted, it would surely have been cheaper (even ignoring legal costs) to have just bought a wheelchair in Colombia and avoided the flight costs.

 

  1. Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.
  3. P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
    1. “The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””

Finally, a happy ending to a tragic story.

  1. I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.

 

 

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