Tag Archives: adoption

An adoption horror story

Posted on October 17, 2025 by suesspiciousminds

I’m going to begin this story by saying that I’m talking here about a case in America, in the 1920s to 1950s. Obviously adoption is different over there, and a hundred years is a long time ago. But it is a shocking story, and despite thirty years in the profession it isn’t something I’d ever heard of until last month. It is a story of abuse of power, mistreatment of the vulnerable and how corruption spreads. We have to look into the abyss sometimes, and in doing so, the abyss looks back.

On the face of it, Georgia Tann was an extremely impressive woman. In a time when career opportunities and education weren’t easy for women, she got a law degree. Despite having a Judge for a father, she wasn’t able to get a job in law and went instead into one of the few professions open to educated women at the time, social work. She became the head of the Tennessee Children’s Home Society.

Also, at that time, adoption wasn’t really viewed as taking a child into your home to be part of the family and instead rather as having another pair of hands to do housework or manual labour on farms. Georgia was fundamental in changing that, and did a great deal to popularise adoption as being a way of taking children who needed homes and placing them as part of the family. She was one of the early pioneers of describing children and their personalities as a way of promoting families to come forward for them. She placed children with celebrities such as Joan Crawford and the attendant publicity really helped to turn around people’s ideas about adoption. Adoption became fashionable and desirable amongst the wealthy and influential, and that effect rippled outwards. She was described as the woman who invented adoption in America.

(The wrestler Ric Flair was a child who was adopted through the Tennessee Children’s Home)

Under her guidance, the Tennessee Children’s Home flourished. By way of example, in 1920 Boston placed only five children for adoption in a year, but in 1928 the Tennessee Children’s Home placed 206 children.

HOWEVER….

Georgia had a strong conviction that children from low-income families, particularly with single mothers, should be removed from them and placed with families of what she described as ‘the higher type’.

And her methods of securing children to be placed was, well, criminal.

For example, take the case of Alma Sipple. Alma was a single mother and her daughter Irma developed an illness. Georgia attended her home and told her that Irma was very sick and needed to go to hospital. Alma didn’t have insurance and couldn’t pay the medical bills, but Georgia had a solution for that. Alma could sign some paperwork and then Georgia would be able to use her own medical insurance to get Irma’s treatment. Alma agreed. Irma never came back.

Alma visited the hospital and was told by staff that her daughter had died. She asked to see her and was refused. The hospital staff were on the take from the Tennessee Children’s Home (whilst state arranged adoptions cost adoptive parents $7, the service from the TCH was charging their rich and keen clients as much as $5,000 – that’s about $81,000 today) and this was a very well-established technique. Alma was told that her daughter had been buried but nobody was willing to tell her where. She went to the police, who were also receiving bribes, as were the Judges stamping the adoption paperwork, and the police told her that the best she could hope for was to be charged with her intention to defraud the medical bills.

It took Alma until 1989 when watching a documentary to recognise Georgia Tann as the woman who stole her baby, and thankfully as a result, she and Irma were able to reconnect.

Irma was one of many children adopted by deception. Mothers would be told to sign paperwork whilst they were still groggy from anaesthesia post birth, and doctors would lie that they had been awake and fully competent when they signed. Sometimes children would just be snatched from the street.

Under Georgia’s command, the Tennessee Children’s Home was estimated to have stolen 5,000 babies. Nineteen children awaiting placements, or having been returned from placements that broke down, died of neglect and mistreatment at the Children’s Home and were buried at a local cemetary in a single large plot with no headstones.

In 2015 a memorial was put up, reading “In memory of the 19 children who finally rest here unmarked if not unknown, and of all the hundreds who died under the cold, hard hand of the Tennessee Children’s Home Society. Their final resting place unknown. Their final peace a blessing. The hard lesson of their fate changed adoption procedure and law nationwide.”

The exact number of children who died is unknown, but some estimates put the figure as high as 500 children. Many of the survivors talked of abuse and mistreatment by adopters – Georgia Tann had a very firm view that children under 7 would have no memories of their original families and sold that belief to adopters hard. When adopters found that those children were (to us very understandably) confused by their new names and traumatised by loss of families, they found that difficult to cope with and rejection and abuse happened far too often.

In 1950 an investigation began into allegations that the Tennessee Children’s Home was selling children for profit. Georgia died of cancer just three days before charges were filed – prosecutors estimated that she had made around a million dollars from child trafficking – around $16 million in today’s money. By that time, Georgia was the head of the Adopted Children’s Association of America.

That money corrupted and poisoned everything – every person who should have spoken out and stopped what was happening kept silent and took the money.

(I’m very grateful to episodes 116 and 117 of the Heart Starts Pounding podcast, which tells this story in a sensitive, vivid and compelling way, and to the Tennessee Children’s Home Society Collection, which keeps an archive of information to keep this vital story alive)

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Overseas assessment and delay

Posted on March 12, 2025 by suesspiciousminds

There’s been a tension for quite a long time between children’s timescales (and the 26 week timetable and principle of no delay) versus exploring all realistic alternatives to adoption.

This Court of Appeal case is a decision on this point, and in my view a helpful reminder to the parties and Courts that the welfare of the child is paramount and that the impact of delay in decision-making for the child needs to be bourne in mind.

Christopher Marlowe said of Helen of Troy that she had the face that launched a thousand ships, and Isaac Asimov postulated later that therefore a milli-Helen is the quantity of beauty sufficient to launch a single ship. This post will launch if not a thousand bookmarks, then at least a hundred for every LA lawyer in the country will want to have this one to hand from time to time.

M (A Child) (Placement Order) [2025] EWCA Civ 214 (06 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/214.html

At the start of the Appeal hearing, the proceedings had been going on for 62 weeks. I won’t go into the background of why the parents weren’t considered suitable, but for a long time, the issue of placing the child with an aunt and uncle in Pakistan was being considered. By the time of the final hearing, the Local Authority took the view that they no longer supported a placement of the child in Pakistan.

That was broadly for these reasons – 14 months after proceedings had been issued, the aunt and uncle still had no visa to come to the UK – that would take at least a further 6 weeks – after that, they could come to the UK and participate in a detailed assessment of their parenting with the child, then obtaining a Court order in Pakistan which might take 6 months. There were also considerable issues with the financial support that the aunt and uncle would need to be able to care for the child.

38.The judge having reached her conclusions in relation to placement with the mother, proceeded, against the background of the welfare checklist, to consider whether it was in M’s best interest to adjourn the proceedings in order to “explore whether it is in fact in [M]’s best interests to be placed in Pakistan, and whether such a placement is actually achievable in [M]’s timescales”.

  1. The judge recorded that the aunt and uncle accepted that:
  2. The judge said at paragraph [76] that the plan to place M with his aunt and uncle was “fraught with uncertainties”. She then particularised issues such as the need to obtain visas, that the local authority were no longer willing to fund a UK assessment, the further delay occasioned by the assessment itself followed by further court proceedings and the need for a mirror order.
  3. The judge emphasised the importance of timescale because of the impact on M. The judge went on at [78-79]:
  4. The judge held at [81] that the adjournment would have to be at least three to four months to complete the assessment and return to court, and probably “more akin to six to twelve months before successful placement could be achieved if the assessment were positive”. There would, she said, be a real possibility that the assessment would not be positive and/or that M could not be placed with the aunt and uncle, which would lead to further delay. The timescales for adoption were, she held, “both shorter and more certain”. She accepted the evidence that a match could be found within a reasonable timescale with placement within months.
  5. Against the backdrop of her findings, the judge reached the conclusion at [82] that it was not in M’s best interests “even when judged by the yardstick of considering his lifelong best interest” to continue the process of assessment with the aunt and uncle “despite all the detrimental consequences that flow from such a decision”.
  6. The judge concluded by saying that whilst it had been a difficult case, it was not a finely balanced one. She expressed her empathy with the aunt and uncle “who have done all in their power to offer their nephew a home”. However, “further delay for an unknown length of time and for an uncertain outcome is quite contrary to M’s needs”.

The Court of Appeal looked at the question of whether the trial Judge was unreasonable and unduly pessimistic about the plan.

53. That there was a real possibility that the assessment might fail was in my judgment an inevitable consequence of the uncertainty inherent in the whole complicated plan; for example, it may simply not have been viable because the funding was no longer available from the cash-poor local authority or the applications for visas may be refused. M may himself have found the introduction to his aunt and uncle with the language barrier just too difficult and, as had been identified by Ms Rafiq, there were issues with schools and the home conditions. These were all potential stumbling blocks. For my part I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great. Should the matter have been adjourned then, providing they managed to obtain visas, the family would have relocated to a strange country for an unspecified period of time for assessment and, if successful, the uncle would then return to Pakistan with the two older (but by no means grown up) children. Once home they would have to manage without their primary carer while their father worked punishingly long hours, potentially for many months, whilst court proceedings took their course in both the UK and Pakistan, proceedings which would be necessary in order to provide essential protection for M’s position in Pakistan.

The Court of Appeal re-emphasised the point made in Re W 2016 that there is no ‘right’ or ‘presumption’ for a child to be brought up within their natural family {author note – I don’t particularly like this aspect of the Re W decision, but it is the law}

  1. The judge did not ignore the positive aspects of the CFAB assessment or the cultural advantages to a family placement, and in conducting her finely tuned balancing exercise specifically said, as recorded at [41] above, that there were grounds for optimism based on the CFAB assessment. However, as Ms Styles rightly submitted, optimism is all well and good but when considering the future of M, a hard-edged evidential approach is necessary.
  2. Notwithstanding the commitment shown by the aunt and uncle to offering M a home and the undoubted advantages if it can be achieved, and that it is in a child’s best interests to have a family placement, in my judgment there were a myriad of reasons why the plan to place M in Pakistan might fail. Given the long delay which had already taken place in getting the proceedings to trial, that the assessment might not be successful was a feature which the judge was bound to have at the forefront of her mind. As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family. In Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, McFarlane LJ said:
  3. The judge was alive to the challenges and spoke of “two contrary principles having pulled the court in different directions, the importance of children’s welfare of being brought up by natural family where it is safe and achievable, and the harmful effects of delay”. Ultimately the judge concluded that M’s welfare demanded that he be placed for adoption and that when she performed a proportionality cross check she said she was “satisfied that, despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do”.

In looking at whether the Court should have granted a further extension to the proceedings to allow for further assessment of the aunt and uncle, the Court of Appeal said this:-

The court was also taken to Peter Jackson LJ’s judgment in Re S-L (Children) [2019] EWCA Civ 1571; [2020] 4 WLR 102, in which he considered the use of s32(5) CA 1989. In relation to a case where improper use had been made of the provision, he made an observation which applies equally to all cases:

“12. In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay, enshrined in section 1(2) Children Act 1989. Judges in the family court are well used to finding where the balance lies in the particular case before them and are acutely aware that for babies and young children the passage of weeks and months is a matter of real significance. Sharpening this general calculation, public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.
13[…] the recorder’s decision to adjourn therefore squarely engaged the above provisions in relation to both children and she was obliged to explain why an extension of the timetable was necessary. In any event, she was under a general obligation to ensure that an adjournment was justified. Adjourning a decision should never be seen as ‘pressing the pause button’: it is a positive purposeful choice that requires a proper weighing-up of the advantages and disadvantages and a lively awareness that the passage of time has consequences”.
It was agreed by all parties that at 18 months old M is in a critical phase for making long term healthy attachments and that the older he is the more likely he is to encounter attachment difficulties and the harder it would be to find a match if he were to be adopted. Ms Darkens, again in reflective mode, when asked in oral evidence about M’s timescales said that “the timeframe for the optimum outcome for him was months ago”.

Mr Styles highlighted that many matters critical to the outcome are simply outside the judge’s control. Three areas spring to mind:

(i) Obtaining funding from the Resource Panel: the Panel would have to approve the essential funding notwithstanding that the local authority’s care plan is no longer to place M with the aunt and uncle;
(ii) Obtaining a visa from the Home Office: Mr Gupta accepts that visas have to be obtained and that the courts cannot put pressure on the Home Office. He says, however, that it is routine for the Home Office to be asked to expedite an application for a visa. I agree that the local authority could do that, but they certainly could not do so by reference to a court-prescribed timetable;
(iii) Obtaining a Guardianship Order in Pakistan: the uncontradicted evidence of Mr Khan is that it is preferable for an order to be obtained in Pakistan prior to placement there. The evidence is that this can take up to six months. It goes without saying that even the most rigorous timetabling by a UK judge can have no influence on the processes of the courts of a foreign jurisdiction.
These and other matters which are outside the control of the Court have to be taken into account when deciding whether a further extension of the proceedings are to be permitted. Further, it has to be remembered that “Day 1” for the consideration of acceptable timescales is not by reference to the date that a court agreed to adjourn the final hearing, but is the date on which the care proceedings were issued, as Peter Jackson LJ said in Re S-L (cited above), any court should be “acutely aware that for babies and young children the passage of weeks and months is a matter of real significance”.

Notwithstanding Mr Gupta’s realistic submissions, supported by Mr Brookes-Baker on behalf of the mother, and Ms Shaikh on behalf of the father, the judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgment she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.

Conclusion

M has been in care all his life. At the date of the trial he was 14 months old and the aunt and uncle, through no fault of their own, were not in a position to say that they could, as of that date, be regarded as a realistic option for the placement for M with them.

In my judgment for all the reasons set out above, I would endorse the judge’s observation that the decision was a difficult one but not a finely balanced one. What made it difficult was that the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable within his timescales and that M’s best interests could only be served by the making of a placement order with a view to his being adopted in the UK.

For these reasons I dismissed the appeal against the making of a placement order.

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Setting aside an adoption order

Posted on January 17, 2025 by suesspiciousminds

The Court of Appeal in X and Y, Re (Children: Adoption Order: Setting Aside) [2025] EWCA Civ 2 https://www.bailii.org/ew/cases/EWCA/Civ/2025/2.html considered an appeal from an application to revoke the adoption orders made on 2 children, X and Y, who were 17 and 16 at the time of the appeal hearing.

Lieven J at first instance had declined to revoke the orders considering that the Court lacked jurisdiction to revoke adoption orders on welfare grounds.


  1. The single question of law at the centre of this appeal is whether the court has any jurisdiction to set aside a validly made order for the adoption of a child, other than by way of an appeal. If the central question is answered in the affirmative, then subsidiary issues will arise as to the manner and basis upon which that jurisdiction should be exercised

The facts of the case were fairly straightforward – the children had been placed for adoption, that placement had broken down and by the time of the appeal, both children were living with their birth mother. In relation to Y Lieven J found that it would be in her welfare interests to revoke the order as she found the position of her biological mother not being her legal mother, and her legal mother not being someone she thought of in that way distressing. Lieven J found that it was less clear cut with X.

“I do however wish to note, that I accept, certainly in the case of Y, it would be in her best interests to revoke the order. She plainly finds the present legal fiction distressing and the fact that it reflects neither reality nor her own sense of self, deeply upsetting. This has been her position consistently for a long period. The position is less clear cut in respect of X. I do not intend to carry out a detailed analysis of her welfare interests given that I have found I have no power to revoke.

It was common ground that the Court has jurisdiction to revoke an adoption order where the making of the order itself was being appealed (i.e the Court was wrong to make the adoption order and that’s reversed on appeal)

The more tricky area is whether the Court can do so on welfare grounds – i.e Lieven J had found that it would be in Y’s best interests to revoke the order but that the Court did not have the jurisdiction to do that.

This raises interesting philosophical and political (small p) issues. On the one hand we have the principle that Court proceedings and orders ought to be for the benefit of children and that their welfare is paramount, on the other there is the statutory framework of adoption which does not contain any statutory powers or provisions for reversing such orders and the public policy of the underlying intention of adoption being that it is an order for life and permanent.

The big case that comes to mind is Webster (this was a set of proceedings in which a child was adopted following findings of non-accidental injuries and then at a later criminal trial the parents were acquitted with medical reports suggesting that the injuries were organic in nature – scurvy having occurred) and the Court of Appeal in that case found that:-

“[148] In my judgment,… the public policy considerations relating to adoption, and the authorities on the point—which are binding on this court—simply make it impossible for this court to set aside the adoption orders even if, as Mr and Mrs Webster argue, they have suffered a serious injustice.
[149] This is a case in which the court has to go back to first principles. Adoption is a statutory process. The law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once orders for adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

Thus, part of the discussion here was whether in ‘highly exceptional and very particular circumstances’ the Court could permit adoption orders to be set aside, and what such circumstances might warrant that. I.e has the Court not got jurisdiction to set adoption orders aside at all, OR they have jurisdiction but only in highly exceptional and very particular circumstances.

I was a little surprised by the outcome here (I think we all mentally felt that Webster was the line on this – that theoretically the Court could set aside adoption orders in highly exceptional cases – and there have been a tiny handful of cases where this HAS happened), but the Court of Appeal here has looked very rigorously at the jurisdiction point and found that there just is not a satisfactory mechanism.

In the absence of a statutory mechanism to set the orders aside, the Court of Appeal looked at various arguments as to jurisdiction (an appeal out of time, inherent jurisdiction, FPR rule 27.5 and even the slip rule – always nice to see the slip rule) and found that none of them actually gave the Court jurisdiction.

follows from the above that the statements about the extent and nature of the powers of the High Court, originating in Re W, continuing in Re O, and culminating in the summary in AX v BX at §80(5)-(7), are not correct and should not be followed. It further follows that the two cases in which adoption orders were set aside for welfare reasons (Re PK and AX v BX) were wrongly decided, albeit from the best of motives. As was made clear in Re B, the fact that an adoption has turned out badly and that revocation would serve the interests of the adopted person, whether a child or an adult, is not a reason for the court to supply a remedy that Parliament has chosen not to provide.

The court is of course required to act within a human rights framework and it is possible to imagine such an extreme situation arising that the revocation of an adoption order becomes necessary if the court is to comply with its Convention obligations. However, the remedy in such a case would almost certainly be an appeal out of time, and not an originating application. Further, it is highly unlikely that the Article 8 right to respect for family life or for personal identity could ever be of such weight as to justify an outcome that is at odds with the statutory scheme of adoption that has prevailed in this country for a century. Such an outcome would (per Re B at 340g) “undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents and the child”. Any change in that state of affairs is a matter for Parliament.

Conclusions

The conclusion that we have reached on consideration of the previously decided cases, which holds firmly that there is no jurisdiction at first instance to set aside a validly made adoption order, is on all fours with the summary of the underlying policy considerations put forward by the SoS, which we accept [paragraph 36 above]. Those policy considerations are, in turn, plainly in line with the approach of Swinton Thomas LJ, Simon Brown LJ and Sir Thomas Bingham MR in Re B. These are matters of fundamental principle with respect to adoption. Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the SoS that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.

In reaching our decision, we have been acutely aware that it will be profoundly unwelcome to each of the lay parties in this appeal. We have particularly heard what Y has said so clearly to us through the well-placed submissions of Mr Bowe. In the circumstances of this case, where she and her sister have never fully left their birth family and committed to their adoptive home, despite the consistently child-centred efforts of AM, Y and, maybe to a lesser extent, X will be profoundly upset by this outcome. If the court did have a welfare based jurisdiction then the outcome, as Lieven J indicated, would probably have been different.

We are also very conscious that this is by no means an isolated case and that there will be other, possibly many other, adoptive relationships which have broken down and for whom the ability to resort to the court to revoke the adoption order would be earnestly welcomed. But, for the reasons we have given, both the law, as passed by Parliament and as previously interpreted by this court, and the policy underlying the statutory adoption regime have inevitably led us to hold as we have done.

For the reasons that we have given, the appeal must be dismissed. Rather than holding, as all parties submitted was the case, that Lieven J’s interpretation of the extent of any inherent jurisdiction to revoke an adoption order was too narrow, we have concluded that the reality is that no such jurisdiction exists.

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Adoption and contact

Posted on November 5, 2024 by suesspiciousminds

If you’ve been following the news recently, you may have heard talk of ‘the weave’, where someone appears to go off at a tangent (such as perhaps talking about Hannibal Lecter as though he were a real person, or about how smart his uncle was at MIT) with the idea that then you’d skillfully bring it back to a real message of consequence (such as, no, i’ve got nothing.)

Anyway, I’m going to write about the Court of Appeal decision in

R & C (Adoption or Fostering) [2024] EWCA Civ 1302

https://www.bailii.org/ew/cases/EWCA/Civ/2024/1302.html

which talks about the very long history of the legal principle that the Courts don’t make contact orders about parental contact against adopters (going right back to 1989) and the current landscape – not yet the legal one, but thinking on the ground, about the benefits of open adoption and post adoption contact. So it’s an interesting case.

And I’m going to start the Weave now.

People who know me well will know that my favourite book ever, and a book that legitimately saved my life in dark times is “The Worst Journey in the World” by Apsley Cherry-Garrard. Cherry-Garrard was a fairly lowly scientific officer on Scott’s ill-fated voyage to the Antarctic. Tragically, Cherry-Garrard was one of the officers who went out to find Scott and his teammates bodies when it was clear that they were not going to return alive. It’s a incredible book about bravery, fear, the awesome wonder and fear of the world’s emptiest place, friendships and sadness. One of the things that I learned from that book is that when you’re making the massively long trip to the South Pole, you don’t start from point A and go to the Pole. No, for the year beforehand, you make a succession of trips from Point A to Point B, to Point C, back to A – to point C, leaving supplies of food and oil at each point at what are called Depots. So you don’t have to haul the whole of the food and oil that you need for the whole journey there and back in one go – you just have to keep moving forward at a small distance and putting down a marker and leaving enough for the person who comes next to be able to make the rest of the journey.

I think that Re R and C, when we look back in a couple of years about the legal landscape, will look an awful lot like a Depot. We can’t make the whole journey from the many many legal authorities that currently exist saying no contact orders against adopters to making the orders in one stop – the process, if that’s what is going to happen, is going to be a series of smaller judgments getting us farther away from the starting point and giving the next Court enough food and oil to go on to the next depot and potentially all the way to the South Pole.

Let’s have a look at the case :-

This appeal is brought by a local authority against a judge’s refusal to make placement orders in respect of two young children. The principal reason for the judge’s decision was that he concluded that adoption was inconsistent with the children’s need for continuing contact with members of their birth family, in particular their two elder half-siblings. The local authority, supported by the children’s guardian, say that the judge’s decision was wrong. Its care plan contemplates that the children will only be placed with prospective adopters who are prepared to agree to continuing direct contact between the siblings.

This appeal falls to be decided at a time when there is renewed discussion about open adoption and provides an opportunity to reiterate the clear principle that, at the stage of making an order under s.21 of the Adoption and Children Act 2002 authorising a local authority to place a child for adoption, it is the court, rather than the local authority or any other person, which has the responsibility for determining whether there should be ongoing contact between the child and the birth family.

As indicated earlier, the Court of Appeal set out the long legal history about making orders about contact that would bind on adopters.

As noted above, adoption after 1926 conventionally involved the complete severance of the relationship between the child and their birth family. There were, however, exceptional cases in which contact continued. In Re C [1989] AC 1, the House of Lords allowed an appeal by prospective adopters against a decision of this Court dismissing an appeal against a judge’s refusal of the adoption application. The subject child, who was 13 years old, had a close relationship with her elder brother which the appellants accepted should continue unimpeded after adoption. Her mother, however, withheld her consent to the adoption on the ground that it would weaken the siblings’ relationship. In allowing the appeal and making the adoption order, the House of Lords (with the appellants’ support) attached a condition to the order (under the legislation then in force, the Children Act 1975) providing that there should be continuing contact after the adoption. In his speech with which the rest of the House agreed, Lord Ackner observed (page 17F to G):

“It seems to me essential that, in order to safeguard and promote the welfare of the child throughout his childhood, the court should retain the maximum flexibility given to it by the Act and that unnecessary fetters should not be placed upon the exercise of the discretion entrusted to it by Parliament. The cases to which I have referred illustrate circumstances in which it was clearly in the best interests of the child to allow access to a member of the child’s natural family. The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child’s natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.”
In the years following this decision, the principle that a court should not, save in exceptional circumstances, make an order for post-adoption contact with members of the birth family against the wishes of the adopters was firmly applied, even as attitudes towards the benefits of such contact began to change. In Re R (Adoption: Contact) [2005] EWCA Civ 1128, this Court considered an appeal involving post-adoption contact a few months before the coming into force of the 2002 Act. Having noted what he described as the “clear change of thinking” since the previous legislation was passed in 1976, Wall LJ observed (at paragraph 49):

“contact is more common, but nonetheless the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.”

Back to the central issue:-

The analysis continues at paragraphs 26 to 36, concluding with the most recent authority (which post-dated the original decision in this case:-

In Re D-S (A Child: Adoption or Fostering) [2024] EWCA Civ 948, this Court allowed an appeal against a judge’s refusal to make a placement order and made the placement order itself. In his judgment with which the other members of the Court agreed, Peter Jackson LJ concluded that the child’s relationships with her birth family were “not of such importance that they can outweigh the predominant need for her to have a family of her own”. He described this as a factor which spoke “in favour of contact taking place, if it can be arranged, after C is placed for adoption and later adopted.” He recorded that the local authority could be “expected to honour its care plan for current contact, and for a 3-month search for adopters who will accommodate meetings with family members.” But he concluded that “overall, it would not be better for us to make a contact order, in fact it might be detrimental to the greater priority of finding an adoptive family for C.

The Court of Appeal then spoke about the broader cultural landscape in the national debate and discussions about adoption:-

Although developments in adoption policy that are not yet reflected in legislative change do not, in my view, call for detailed analysis on this appeal, it is right to record that this appeal falls for determination at a time when there is increased public discussion about the future of adoption in general and of open adoption in particular.

These issues were addressed by the President of the Family Division in his two recent lectures – “Adapting Adoption to the Modern World” (the Mayflower lecture in Plymouth, 9 November 2023, https://www.judiciary.uk/speech-by-sir-andrew-mcfarlane-adapting-adoption-to-the-modern-world/) and “Adapting Adoption to the Modern World – Part Two” (the POTATO conference lecture, 17 May 2024, reported at July [2024] Fam Law 797). As he stressed in the second lecture, neither lecture was a court judgment, Practice Direction, or Presidential Guidance, but rather an expression of his “preliminary thoughts” on the question: “How will this cultural shift towards greater openness impact upon the work of the Family Court and how may the court support the looked-for change in the default setting so that maintaining relationships with a child’s birth family is the starting point, rather than the exception?”

In the course of his second lecture, the President took the opportunity to underline some features of the existing law and also make suggestions about how the law might develop in future. He observed:

“Orders for contact made under ACA 2002, s 26 when making a placement for adoption order set the template for contact going forward. Where continuing contact in some form is ordered at that stage, this will be an important ‘known known’ about the child to be taken on board by any potential adopters with whom placement may be considered.”
He continued:

“…the likely template for contact arrangements post adoption should be set at the placement order stage. This is not a change in the current approach. A court making a s.26 contact order, in keeping with the duty under s.1 and its lifelong focus, should have regard not only to the short-term contact arrangements required in the pre-adoption stage, but also in setting the course for the maintenance of family relations over the longer term if that is in the child’s best interests. Also, there is nothing wrong, and I would suggest it should be good practice, for a s.26 contact order to contain a recital as to the court’s view on contact arrangements post-adoption.”
In these observations, the President was doing no more than reiterating the approach to s.26 mandated by case law. He went on to express some preliminary thoughts about how courts might in future exercise their powers to make contact orders at the adoption application stage. As he acknowledged, in those remarks he was considering steps which go beyond the current case law. It is likely that this Court will consider these matters again at some point, but they do not arise on this appeal. We are concerned only with the interpretation of s.26.

There’s an interesting discussion about whether there is a difference, legally, between imposing an order on adopters who do not agree with it at the stage of adoption and on the other hand, the Court setting the tone of what contact they would expect an adopter who has not yet been matched with the child to sign up to. I.e that the Court at first instance had been treating as a binary decision – if sibling contact no adoption, if adoption no sibling contact, which is more important, when there could have been a route to achieving both.

It was acknowledged by counsel for the local authority that, under the current law, save for extremely unusual circumstances, no order will be made to compel adopters to accept contact arrangements with which they do not agree. It was submitted, however, that there is a critical difference between, on one hand, imposing on adopters a contact regime that they had never bargained for in respect of a child previously placed with them for adoption and, on the other, crafting a contact regime at the placement order stage so that the eventual adopter accepts the adoptive placement with their eyes wide open to the court-directed imperative for long-term sibling contact. Within the latter regime, the court will “set the tone” or define the template of future contact at a point well before the prospective adopter commits to the child’s placement. The use of s.26 in such circumstances would not be for the purpose of overriding an adopter’s fully formed views about sibling contact, but to shape those views before they are formed. In this case, the judge misconstrued the powers and flexibility afforded him by s.26. He wrongly considered that he lacked the ability to shape the children’s long-term contact with their siblings, and therefore allowed that factor to dominate the welfare evaluation. By concluding that he could not give the children a “guarantee” of sibling contact, he underestimated the efficacy of the statutory steps he could take to achieve that outcome. The appellants submitted that, if this approach were followed generally, few siblings from a large sibling group would meet the test for adoption.

The Court of Appeal say this:-

A key element in the judge’s reasoning was his assertion that “permanence comes at a significant cost, namely the complete and irrevocable severance of all ties with the natural family”. As demonstrated by the summary of the case law set out above, that may have been true of all adoptions at one stage, and it remains true of some adoptions now. But it is emphatically not true of many adoptions and is at odds with the concept of open adoption which is now embraced as a model in what the President has called the modern world. The judge acknowledged that the severance of ties with the natural family “can sometimes be ameliorated by continued contact between the birth family and the adopted child” and that, in this case, the local authority has “committed itself to a search only for adopters willing to promote direct sibling contact”. He discounted these factors, however, on the basis that ongoing contact “is at the discretion of the adopters” and that “sibling contact cannot be guaranteed” because “even adopters who are open to it initially may not continue to promote it after the making of an adoption order”.

In these observations, the judge overlooked the fact that it was his duty to “set the template for contact going forward”. This case seems to fall four square within the words used by Wall LJ in Re P at paragraph 151. As in that case, there is a “universal recognition” that the relationship between the siblings needs to be preserved. It is “on this basis that the local authority / adoption agency is seeking the placement of the children …. [T]his means that the question of contact between the two children is not a matter for agreement between the local authority / adoption agency and the adopters: it is a matter which, ultimately, is for the court”. In those circumstances, “it is the court which has the responsibility to make orders for contact if they are required in the interests of the two children”.

In reaching his conclusion, the judge quoted passages from my judgment in Re T and R. It does not follow, however, that in every case where the court concludes that it is strongly in the interests of the children to continue to have sibling contact the option of adoption should be ruled out. Each case turns on its own facts. In Re T and R¸ the crucial importance of contact to the psychological wellbeing of the subject children and their older siblings, the importance of maintaining the children’s sense of their cultural and community heritage, which could only be achieved through contact, coupled with the community’s antipathy to adoption which made contact unfeasible, led to a conclusion that adoption was not in the interests of the children’s welfare. In other cases, the evidence will clearly demonstrate not only that ongoing sibling contact is in the children’s interests but also that it is likely to be achievable in an adoptive placement. In my view, this is just such a case.

Under the current law, as the President said in Re B, “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.

The Court of Appeal considered that the Judge had been wrong in their analysis of the options before them

Under the current law, as the President said in Re B, “it will only be in an extremely unusual case that a court will make an order stipulating contact arrangement to which the adopters do not agree”. But that does not obviate the court’s responsibility to set the template for contact at the placement order stage. In this case, the local authority was committed to search only for adopters willing to accommodate sibling contact and invited the court to make an order for contact under s.26, both to meet the children’s short-term needs and to set the template. There was of course a possibility that the search for such adopters might be unsuccessful or that adopters might subsequently refuse to agree to contact. But in the circumstances of this case, that possibility was not a sufficient reason to refuse to make the placement order.

The judge was wrong to dismiss the argument that, because of their ages, R and C deserve a right to permanency on the grounds that it “comes perilously close to social engineering”. Although it is not entirely clear, it seems he used the phrase “social engineering” to mean taking a decision about the children’s future by reference to social policy rather than their specific welfare interests. But the value to a child’s welfare of the permanence which only adoption can provide has been recognised in many cases, including in passages cited by the judge from the judgments of Pauffley J in Re LRP (A Child) (Care Proceedings – Placement Order) [2013] EWHC 3974 (Fam) at paragraph 39 and Black LJ in Re V (Children) [2013] EWCA Civ 913 at paragraphs 95 – 96. Every court considering whether to endorse a plan for adoption must take into account the fact that, in Black LJ’s words, “adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.” The professional evidence before the judge was that it was in these children’s welfare interests to be placed for adoption. There was no justification for describing this as “perilously close to social engineering”.

I am also troubled by the judge’s statement that “the role of the court is to protect children from harm. It is not to improve their life chances or to move them to placements where they will be better off.” This is a distorted interpretation of the statutory welfare checklist in s.1(4) of the 2002 Act. The factors in that list include “any harm … which the child has suffered or is likely to suffer” but it also includes a range of other factors, including the ability of the child’s parents and others to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs. Where the court concludes that a child has suffered or is likely to suffer significant harm as a result of the parents’ care, the court is obliged to consider all the relevant factors in the statutory checklist in order to determine which outcome best provides for the child’s welfare throughout their life.

I am equally concerned by the judge’s further comment that “the mother cannot be completely ruled out” and that, although “at present the risks to the children of a return to her care are simply too great”, she also “has much she can offer” once she has resolved her emotional and psychological problems. It is not entirely clear what he was intending to convey by these comments. It may be that he was intending merely to express his view that the continuation of a relationship between R and C and their mother was of value to the children. But the terms in which he expressed himself imply that he was holding out the prospect of the children returning to their mother at some point in the future. If so, this was no more than a speculative hope. There was no evidence on which he could have concluded that she would succeed in overcoming her problems so that, in the words of paragraph (f)(ii) of the checklist, she would acquire the ability to “provide the child[ren] with a secure environment in which [they] can develop and otherwise to meet [their] needs”.

Overall, the judge’s reasoning in paragraphs 44 and 45 of the judgment failed to provide a sufficiently robust and rigorous analysis of the advantages and the disadvantages of the realistic options for the children, as required by repeated decisions of this Court,

The Appeal was allowed and the Court made placement orders with recitals in relation to contact:

If my Ladies agree, I would therefore propose that this Court allows the local authority’s appeal, sets aside the judge’s order, and makes placement orders in respect of both children. In addition, pursuant to s.26(2)(b) of the 2002 Act, I would add an order requiring the person(s) with whom R and C live, and any other person(s) with whom they are to live while they remain the subjects of placement orders, to allow them to attend visiting contact with their siblings N and Y six times per year, in accordance with arrangements made by the local authority. I would include in the order a recital, in terms proposed by the local authority, recording that

“the local authority confirming that, under its care plans and during its search for prospective adopters for R and C
(1) that the local authority will arrange direct inter-sibling contact between the subject children and their siblings N and Y, six times per year;
(2) that the local authority will search exclusively for and will match the subject children only with prospective adopters committed to facilitating inter-sibling contact as set out above and who will propose to adopt both the subject children;
(3) that, in the event that prospective adopters committed to facilitating inter-sibling contact as set out above have not been found within six months, the local authority will apply to the court.”
Finally, in line with the suggestion made by the President in his second lecture “Adapting Adoption to the Modern World – Part Two” (quoted at paragraph 39 above), I would propose adding a recital that it is this Court’s view that after adoption R and C should continue to have direct contact with N and Y six times a year.

I would expect to see more such recitals in cases where the Court consider it appropriate for the children’s interests to set down that marker of what contact post placement is expected by the Court. We will have to watch this space to see what happens where such recitals are made and the placement identified for the children doesn’t deliver.

We do live in a society currently where the debate on both the benefits of contact and the realities of trying to restrict all contact are going to continue to develop and the law must of course move with the times and be willing to revisit long-established principles where the landscape outside of the Court room has changed.

As I read from the splendidly dressed Oliver Conway on Twitter the other day about this case “I think we need to accept that the internet means closed adoption (where there is no contact with birth family) is pretty much unworkable”

Everyone now has a printing press and a private investigator in their pocket – every interaction a person, including a child, has leaves a digital footprint that can be traced and the ability to trace it just gets easier and easier with each passing year. The genie, if not fully out of the bottle yet, is at the very least pushing at the base of the cork with both hands and loosening it considerably.

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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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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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ADMs apple

Posted on May 9, 2019 by suesspiciousminds

 

What happens when a Judge disagrees with an ADM?

 

Well, if the ADM decides the plan is adoption, the Judge just refuses the placement order, very simple.

 

What happens when the ADM decides the plan is NOT adoption and so there’s no placement order application, but the Judge thinks adoption is the right outcome? What then?

[There will be no apples in this post, I just needed a title.   I don’t believe anyone pronounces ADM as a word rather than three letters. Would love to hear from anyone who has been pronouncing it like “Adam” in Fonejacker style… But imagine the case really being about choice and temptation and consequences, if it makes you feel less tenuous]

The Court of Appeal in Re TS (Children)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html

 

decided an appeal in which (bear with me)

 

The Judge wanted adoption

The Local Authority didn’t

By the time of the appeal hearing, the mother also preferred adoption to long-term fostering

The appeal was granted even though the Court of Appeal dismissed all five of the LA’s grounds

 

 

So, that’s something.

 

On 21st November 2018 at the ‘final’ hearing

 

 

 

 

4.In relation to the middle child, J, there was substantial dispute on the expert and professional evidence concerning his care plan. As is well known, the statutory scheme, to which I will turn shortly, requires a local authority to apply for a Placement for Adoption order if it is satisfied that the child ‘ought to be placed for adoption’ [ACA 2002, s 22(1)(d)]. The local authority cannot be so “satisfied” unless an agency decision-maker [“ADM”] has so determined.

 

 

5.During the course of the hearing the judge heard oral evidence from the ADM who had concluded that J’s welfare would best be served by a long-term fostering placement and had therefore not declared herself satisfied that J ought to be adopted. In reaching her decision the ADM had placed substantial weight upon the evidence of the local authority social worker which evaluated the attachment between J and his older brother B as being of importance.

 

 

6.The local authority, who sought to prioritise his relationship with the elder boy, B, who was his full sibling (in contrast to the younger child, K, who has a different father), favoured long-term fostering for J. In contrast, the evidence of an independent social worker who had been instructed to assess the children’s attachments to their parents and siblings, together with the children’s guardian, advised that J’s welfare required adoption, if possible with his younger half-sibling, K.

 

 

7.The judge, in a lengthy judgment, having reviewed all of the relevant evidence, moved on to conduct his welfare evaluation with respect to J. In doing so the judge applied the welfare checklist in CA 1989, s 1(3) together with the adoption welfare check-list in ACA 2002, s 1(4).

 

 

8.The judge concluded that the assessment of attachment conducted by the social worker was both superficial and “fatally flawed”. The judge stated that he “much preferred” the evidence of the independent social worker and the children’s guardian.

 

 

9.As the focus of this appeal is upon the consequences of the judge’s welfare determination, rather than its internal merits, and as the conclusion of this court is that the issues concerning J’s welfare now need to be re-determined by a different judge, it is neither necessary nor appropriate to descend to any greater detail.

 

 

10.Insofar as the ADM had based her assessment on the local authority social worker’s own assessment, which the judge had found to be flawed, for that reason, and for others identified by the judge, he concluded that the local authority should be invited to reconsider the care plan for J.

 

 

11.At the conclusion of his judgment, and following a full evaluation within the structure of the adoption welfare checklist in ACA 2002, s 1(4), the judge expressed his conclusion with respect to J (at paragraph 146) as follows:

 

 

 

“This has been the most difficult and most contentious part of this hearing. I am satisfied that J cannot be cared for within his birth family. The decision is then whether he should be placed in long-term foster care or given the opportunity of being placed for adoption. The local authority has not satisfied me that the current amended care plan for long-term fostering best meets his welfare needs throughout his life. Standing back, looking at the whole of the evidence and considering the arguments that have been advanced on each side, I reach the conclusion, that his lifelong welfare interest is best met by his being placed for adoption if possible and if that is managed with K, then that is the best outcome of all. It should be noted, that this was mother’s secondary position. I therefore invite the local authority, to reconsider their position in respect of J and to make a placement application. In the meantime, I will continue an interim care order with his remaining in the current foster placement until the case can be returned to me. I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent. If, the local authority do not take up that invitation, then the Guardian has already stated that she will consider the question of judicial review. That process is likely to cause further unwelcome delay for J’s plan for permanency. Therefore, care will need to be taken.”

12.The judge therefore extended the interim care order with respect to J for a short time to enable the local authority to reconsider its care plan for J

 

 

The ADM had been present for the judgment and was also provided with a note of it (the transcript hadn’t been obtained in time). The ADM still considered that adoption was not the right plan for the child and thus did not authorise a placement order application.  (There’s considerable complaint in the judgment that the revised ADM statement did not really grapple with the judicial criticism of the social work assessment and his conclusions about the sibling relationship, so hadn’t been a live reconsideration of the judgment, but just a  ‘we’ve thought about it, no’ response)

 

At the next hearing on 14th December 2018, which ought to have been a dialogue between Judge and parties as to “well, what next?” (i.e making the Care Order with plan of long-term fostering, or making further ICO to allow judicial review challenge, or asking ADM to think further about x y and z) instead the LA sought to appeal that judicial decision, and the Court granted permission, so nothing else really happened.

 

 

The LA submitted five grounds of appeal (which, spoiler, I already told you they lost on all of them but won the appeal)

23.In prosecuting the local authority’s appeal Miss Henke and Mr Rees rely upon five grounds:

 

 

 

i) That the judge erred in concluding that he was in a far better position than the ADM to determine the best outcome for J, rather than considering whether the ADM’s decision could be successfully challenged on public law grounds.

 

ii) That the judge erred in failing to reconsider his decision in the light of the ADM’s December witness statement which took account of the judge’s determination and which cannot be properly challenged on public law grounds.

 

iii) Parliament has given the decision to determine whether a child “ought to be placed for adoption” to the local authority rather than the Court.

 

iv) As the decision to apply for a Placement for Adoption order is one solely within the determination of the local authority, and as the ADM had reconsidered her decision in a manner that is not open to challenge on public law grounds, the judge was in error in continuing to refuse to endorse the care plan and make a final care order.

 

v) Given that the s 31 statutory threshold criteria were satisfied and the court determined that J could not return to the care of his family, the court should have made a final care order on 20 November 2018.

 

 

 

Broadly, the Court of Appeal say that the judicial decision that he wanted the LA to consider changing their care plan to adoption falls into line with the authorities on change of care plan generally or change of order to say, Care Order at home.

 

 

They cited the recent case of Re T 2018

 

46.More recently, in Re T (A Child) (Placement Order) [2018] EWCA Civ 650; [2018] 2 FLR 926, this court (McFarlane, Peter Jackson and Newey LJJ) considered a stand-off between a judge, who favoured placement of an 18 month old child with his grandmother, and a local authority which favoured placement for adoption. At the conclusion of the process in the Family Court, the judge had reluctantly concluded that a placement order should be made in the light of the local authority’s refusal to change its care plan. The grandmother appealed. The appeal was allowed and the case was remitted for re-hearing. After reviewing the authorities, and having noted that the judgment of Ryder LJ in Re W appears in ‘markedly more imperative’ terms than that of Thorpe LJ in Re CH 20 years earlier, Peter Jackson LJ, giving the leading judgment, continued:

 

 

 

“[42]     Although they touch upon the same subject, the decision of the Court of Appeal in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 does not appear to have been cited in Re W. For my part, I would view the two decisions as seeking to make essentially the same point, though the tone in Re W is markedly more imperative. I particularly refer to the observations that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk (para [81]) and that a local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision (para [83]). I would agree with these propositions to the extent that the court’s assessment of risk is sovereign within proceedings and that a local authority cannot refuse to provide a service if by doing so it would unlawfully breach the rights of the family concerned or if its decision-making process is unlawful on public law grounds. However, the family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be. What the court can, however, expect from a local authority is a high level of respect for its assessments of risk and welfare, leading in almost every case to those assessments being put into effect. For, as has been said before, any local authority that refused to act upon the court’s assessments would face an obvious risk of its underlying decisions being declared to be unlawful through judicial review. That must particularly be so where decisions fail to take account of the court’s assessments. Or where, as in this case, there is an impasse, there may have to be an appeal. But in the end, experience shows that the process of mutual respect spoken of by Thorpe LJ will almost inevitably lead to an acceptable outcome.

 

[43]     It is clear from these decisions that the court has both a power and a duty to assert its view of risk and welfare by whatever is the most effective means. I cannot agree with the submission made on the behalf of the guardian – ‘some judges might have pursued the matter further with the agency decision maker, but this judge cannot be said to have been wrong not to do so’. As McFarlane LJ remarked during argument, that amounts to a lottery, depending upon the inclinations of one judge as against another. The obligation upon the court is not merely to make its assessment, but to see it through. That is a matter of principle, and not one of individual judicial inclination.

 

[44]     The present case is somewhat more complicated than Re CH or Re W. Here, as Ms Fottrell notes, the judge’s preferred plan was dependent upon a separate step being taken by the local authority within a different statutory framework. Without the grandmother being approved as a foster carer, it would not be lawful to place Alan with her under a care order. I therefore examine the law as it applies to the approval of connected persons as foster carers.”

 

And decided

 

 

 

 

48.Firstly, the approach of a court to a potential impasse with a local authority on an important element in the care plan for a child has been well established for over 20 years. Insofar as there has been movement, it has been in the direction of emphasising the role of the court during proceedings (see Ryder LJ in Re W), but, in like manner to the approach taken by Peter Jackson LJ in Re T (with whom I agreed in that case), I consider that when, as here, the focus is upon the care plan after the proceedings are concluded, there is a need for mutual respect and engagement between the court and a local authority.

 

 

49.The key authority in the canon of cases on this point is, in my view, Re S and W; subsequent authorities have confirmed the clear statement of the law given in the judgment of the court given by Wall LJ. Of particular relevance to the present appeal is the passage at paragraph 34:

 

 

 

“Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.”

 

And at paragraph 35:

 

“There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.”

 

 

I have a difficulty with this. On the one hand, yes, a Judge deciding the case must be able to say “I don’t like any of the options that are before me and I want further discussions about whether there may be another way forward”.   On the other, what then is the point of the Agency Decision Maker?

 

We all know in cases that the involvement of an Agency Decision Maker in deciding whether or not a Local Authority can apply for a Placement Order and have adoption as the plan for the child adds 2-3 weeks to the timetable and requires production of a lengthy document in the form of a Child Permanence Report. That’s because the statute and regulations set up a system whereby social workers could not themselves decide that adoption was the plan, it needed to be a plan which was supported by the Agency Decision Maker (earlier after the Adoption Panel heard the case but that requirement was removed around the time 26 weeks came into our thinking).

 

Well once the Agency Decision Maker is not a gate-keeper who decides whether an application is put before a Judge or not, why not just have a social worker make an application for Placement Order, and the Judge decide it?  You either have separation of powers or you don’t.

But the Court of Appeal here basically say that the Judge can properly and legally invite the LA and ADM to reconsider and ask them to put in a Placement Order application.  What happens when and if the ADM says no still (currently) remains unknowable.  Judicial review isn’t an easy solution here. Particularly if the ADM is making a decision with which others might not agree, but is not for judicial review purposes a decision that no reasonable ADM could ever take.

I think in part, that’s why the LA were arguing that unless the ADM decision of long-term fostering was ‘wednesbury unreasonable’ (a decision that no reasonable ADM could come to), then the Court should move on and consider Care Order against Supervision Order and no order, and put adoption out of its minds. The Court of Appeal reject that, and say the Judge was entitled to ask the ADM to think again.

 

 

The Court of Appeal, as I said at the outset, granted the appeal, despite rejecting all five of the LA’s grounds of appeal. And it was, in part, because the Court on 18th December granted permission to appeal rather than continuing the process (which seems (a) harsh on the Judge and (b) a bit have your cake and eat it on the part of the LA, who win the appeal because they wrongly persuaded a Judge to give them permission)

 

 

 

 

56.Although this is not strictly how the Local Authority formulated its grounds of appeal, I am driven to the conclusion that the judge was in error in conducting the December hearing as he did. No objection was taken to the point being put in this way, and I am satisfied that it was fully ventilated at the appeal hearing. In stating that conclusion I do not intend to be critical of the judge, who plainly found himself in an unwelcome situation and who may have been bounced into a speedy decision when the oral application for permission to appeal was made at the beginning of the hearing. There was, however, as I have stated, no basis upon which permission to appeal the November determination could have been granted. Further, it was, in my view, premature for the judge to hold that there was an impasse between the court and the local authority before he had undertaken a further evaluation process in the light of the ADM’s statement. If, as may have been the case, following such an evaluation the court were to conclude that the ADM had failed to engage with the judge’s reasoning, a further adjournment for reconsideration by the local authority may have been justified. In short, difficult though the situation undoubtedly was, the December hearing should have run its course rather than being terminated before it had really commenced by the grant of permission to appeal the November order. In coming to this conclusion I have the words of Wall LJ in Re S and W very much in mind:

 

 

 

“[43]     As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.”

 

But the other basis for granting the appeal was this

 

 

57.Fifthly, and separately from any of the grounds of appeal raised by the local authority, I am concerned by the clear statement that appears in the judge’s November judgment concerning his approach were a placement for adoption application to be made:

 

 

 

“I will indicate that if such a placement application is made then I will make the same and dispense with the parents’ consent.”

58.I consider that the father has made good his appeal on the basis that the judge was in error in stating a clear predetermined conclusion on the question of whether the parents’ consent should be dispensed with under ACA 2002, s 52 in the event that, in future, the local authority applied for an order authorising placement for adoption. Although it is plain that the option of adoption was very much on the agenda for the November hearing, given the opinions of the independent social worker and the guardian, no formal application had been made and the father had not expressed a view with respect to consent or been called to give evidence on the issue. Further, it is apparent that no submissions were made to the judge that went beyond the concept of adoption and expressly addressed issues of consent or the formal making of a placement order.

 

 

And so the case has gone back for re-hearing, and all of us have now learned that even where the LA don’t make an application for a Placement Order the Court can still ask them to reconsider after giving judgment at final hearing but before making final orders. That may be music to the ears of some Guardians.

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Runaway train, never going back

Posted on January 22, 2018 by suesspiciousminds

The British Association of Social Workers, BASW, commissioned an independent report to look at adoption. The report has just been published.

There’s a summary piece at the Guardian about it

https://www.theguardian.com/society/2018/jan/18/adoption-has-become-runaway-train-social-workers-cannot-stop

In summary of the summary, concerns about a lack of ethics and human rights approach, concerns that adoption has been politically pushed and dominates thinking, concerns about lack of support for families and adopters, concerns that there’s rigidity in thinking about contact (and the report compares the English approach of an assumption of no direct contact with Northern Ireland where the assumption is that there should be direct contact four to six times per year) and critically that there’s not enough attention being paid to poverty (and austerity) being the driving force behind children being removed from families.

The impact of austerity was raised by all respondents to different extents but was a particular
concern for social workers. Cuts to family support and social work services were a recurring
theme, with the decreasing availability of early help highlighted. Very costly resources are being
used in care proceedings. As a result, less is available for earlier interventions that could support
children to stay at home safely.
Most respondents wanted a better balance between support and assessment, with families
currently too often subject to repeated assessments rather than actually helped. A number felt
social work had become increasingly risk averse and fearful of blame, with the high rates of care
applications one key example given of the impact this has on practice.
A lack of resources once children had come into care or been adopted was similarly seen as
impacting on the effectiveness of services. There were many observations about decision-making
being impacted by the lack of resources and examples given of the results, such as siblings not
being placed together.

Having read the report, I think the summary is a fair one – the report does raise all of those issues. The report is careful to say that just as treating adoption as a perfect solution for all families is not realistic or helpful, demonising all social workers is not realistic or helpful either. Adoption is the right outcome for some children, and some adoptive families thrive and prosper. But there needs to be a genuine debate about whether it is being sought too frequently.

The report is here

Click to access basw_55841-1.pdf

I’m not going to attempt to critique it or deconstruct it – it’s a long and thoughtful piece, taking on board views of a wide variety of people involved in the process, notably hearing from both birth parents and adoptive parents who had very similar viewpoints on some issues. I have had the opportunity to read it twice, but I honestly feel I want more time with it and to reflect on it. So I don’t know whether I agree with it all, but it says things that I genuinely think needed to be said and need to be discussed and thought about. And I wanted to alert people to its existence and hopefully get people to read it and have those conversations.

Nothing in family justice ever exists in a vacuum though – for every person who reads the report and agrees with it, there will be ten who think it doesn’t go far enough and that adoption should be burned to the ground, and ten who think it is ridiculously anti-adoption and goes far too far. That polarisation about adoption is, itself, part of the problem. The stakes are so high, the emotional devastation caused to those on the wrong side of adoption so great, the political capital invested in it, that it is hard to have the conversations that need to be had.

A particular issue that comes up within the report is the self-labelling by the social work system of social workers being ‘the social worker for the child’ rather than a social worker for the family.

The definition of the social worker role as being ‘the social worker for the child’ was a source of
concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)

A lot of the respondents talked about the importance of the relationship that existed between the social worker and the family – and how the quality of that relationship can transform cases (for good or ill)

Repeatedly, across the range of family members, the importance of the relationship that was
developed with a social worker was stressed.
Birth family members gave accounts of both poor and good relationships. They related experiences of feeling deceived by social workers who they considered had not been honest with them. They described not understanding or being helped to understand why their child(ren) were
permanently removed; being unfairly judged/ labelled (‘the report said I was ‘hostile’ so he could not stay, but I was not hostile – I am ‘loud’’ – birth grandmother from a traveller background); and
generally being treated in what they perceived were inhumane ways.
Birth family members emphasised the importance of social workers listening to their views, being
respectful and honest, recognising strengths and displaying acts of kindness. It was considered
that the nature of the relationship could influence what happened with the child. Examples were
given of differing outcomes for children in the same family (i.e. adoption or remaining with the
parents) and these were, at least in part, attributed to the quality of the relationship with the
individual social worker. It was considered vital that social workers have the time to get to know
and work with the family in non-judgmental ways.

Many of the responses from adoptive parents repeated the themes found in the birth parents’
accounts. The relationship between the social worker and adoptive parents was considered to be
key, with the importance of professional but caring social workers highlighted. Adoptive parents
and adopted people also spoke about the importance of good communication, honesty, being
listened to and treated as an individual human being.

The use and misuse of power was a key issue

Families stressed that social workers have a great deal of power in relation to assessment, the
provision of help and decision-making. There were many examples given by birth families,
adoptive parents and adopted people of how they had experienced the exercise of social workers’
power, both positive and negative.
Birth family members repeatedly mentioned the lack of attention by social workers to the social
contexts in which they lived. A number of respondents reported that housing, or the lack of it,
was used as evidence against them in assessments.
The importance of practical support was stressed; ‘a washing machine for example would have made a big difference’ (birth parent). One birth mother spoke of the lack of adequate interpreting facilities in her contact with social workers and legal professionals. Other birth family members also felt discriminated against because of their cultural practices (e.g. a traveller background) or for being working class or having a lack of secure immigration status.
There were many examples provided by birth parents of feeling powerless in a climate that was
seen as very risk averse. Risk of future emotional harm was described as being frequently used,
and was seen as a particularly unjust basis for permanent separation. Birth mothers reported high
levels of domestic abuse and suggested they were being punished for having a violent partner
and/or having experienced domestic abuse in childhood.
Fear of an unsympathetic and punitive response was seen as inhibiting families from asking for
help when it was needed. Parents with mental and physical health problems and learning
difficulties all reported concerns about asking for help because of the emphasis on risk. They
reported receiving an assessment rather than support and feeling they were being scrutinised
rather than helped.
Being judged and stigmatised simply for having a history of care and/or abuse was an issue. Care
proceedings, involving newborn babies, were identified as being particularly traumatic, with a
lack of attention, in particular, to the impact of having just given birth on the mother. Residential
settings were described as being too often focused on monitoring risk rather than providing help
or therapeutic support. Women with disabilities highlighted the disabling environments in which
assessments were carried out.


The report concludes with recommendations (I suggest reading them in detail, but I’ll just put the bullet points here, for reasons of space)

Recommendation 1: The use of adoption needs to be located and discussed in the context
of wider social policies relating to poverty and inequality
Recommendation 2: UK governments should collect and publish data on the economic
and social circumstances of families affected by adoption
Recommendation 3: The current model of adoption should be reviewed, and the
potential for a more open approach considered
Recommendation 4: There needs to be further debate about the status of adoption and
its relationship to other permanence options.
Recommendation 5: BASW should develop further work on the role of the social worker
in adoption and the human rights and ethics involved

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I saw the best minds of my generation utterly baffled by nothing else will do – developments

Posted on January 18, 2018 by suesspiciousminds

It has been fourteen months since we last had a perplexing piece of adoption case law which scrambled the brains – which in the context of what’s been going on in adoption law since 2013 represents an almost One Hundred Years of Solitude rest from mind-f**kery.

In the words of Ser Arthur Dayne, the Sword of the Morning “now it begins”

(we are not going to hear from young Ned Stark yet, saying “no, now it ends” – we may never hear that)

Clearly everything from Re B onwards is the fault of Bran Stark and his Three Eyed Raven powers. Great job, Bran.


Re B (A child) (Care Proceedings) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/20.html

I will stress at the outset that nothing in this case says “A Court should ALWAYS do this”, it says instead that the Court, if they give good reasons for it and a careful judgment “CAN do this”

Basically, little girl B, born in spring 2016. She has a biological brother, H who was born in 2015 and adopted in 2016. Birth parents ruled out in care proceedings on B. H’s adopters wanted to adopt B.

There were family members, paternal cousins I and R, who were a realistic and viable option to care for B.

I’ll make it clear that the judgment we have gives us ABSOLUTELY NO INFORMATION about why the parents were considered not suitable to care for B or why H was adopted. We don’t have any information that would allow us to even speculate about that. Mother and father were both represented, and they were both at the appeal supporting a placement with I and R, rather than seeking to care themselves for B.

The Court at first instance was grappling with the competing arguments

(a) It is better for B to grow up with her full biological sibling for life, even if that means adoption OR
(b) It is better for B to grow up within her biological extended family, even if that means not growing up with her sibling

The prospective adopters sought to be made parties to the proceedings, but that was refused. The Courts have given guidance on this, notably in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2017] 1 FLR 330
http://www.bailii.org/ew/cases/EWCA/Civ/2015/983.html

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”
7.I went on to recognise (Re T, para 51) that there might be “an exceptional case justifying [a] departure from the general approach”, echoing in this respect what Wilson LJ had said in Re A, para 35:

“To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”

In effect, the Court isn’t carrying out a beauty contest between what prospective adopters can offer and what the alternatives are – the Court has to look at the issue of whether adoption is necessary without considering the particular merits that adopters bring to bear.

In this case, however, making it different to Re T, the prospective adopters were caring for a biological sibling H. So the issue wasn’t about what the qualities of the ADOPTERS were, but what the benefits to B might be of growing up with a sibling.

The relevant parts of the welfare checklist from the Adoption and Children Act 2002 are set out below

11.Those sections provide as follows:

“The court … must have regard to the following matters (among others) –

…

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

…

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

So the Court HAS to consider all of the family relationships that might continue for B and the value of them doing so – the parents, I and R AND H.

The Local Authority and the Guardian both urged the Court to consider that the benefits for B of growing up with a full sibling were considerable and tipped the balance towards this being a plan of adoption.

The Judge recognised the last seismic adoption authority, Re W

12.The judge next embarked upon a careful analysis of the evidence (judgment, paras 28-35). It requires to be read in full, but for present purposes I can concentrate on the evidence of the children’s guardian, which the judge described (para 34) as “very thoughtful”. She continued (paras 34-35):

“34 … She said that placement with [R] and [I] is a realistic option, they are an open and generous couple, but her professional judgment is that the advantages for [B] of a full sibling relationship outweigh the advantages of a placement with [R] and [I].

35 She was careful to point out that her recommendation did not turn on an assessment of [I] and [R], but the weight to be attached to the two competing factors set out in Sections 1(4)(c) and (f) of the 2002 Act. She had balanced on the one hand the effect of [B] having ceased to be a member of her original birth family mitigated in this case by the big plus of a lifelong relationship with her full sibling and closest relative and, on the other hand, the relationships she has with her relatives, the likelihood of those relationships continuing and the value to the child in them doing so. If [H] had not already been placed for adoption in a placement willing to take [B], the Guardian would support a placement with [I] and [R]. It would have been under a Care Order because currently the placement is untested. That would result in a period of uncertainty for [B]. Taking into account the research on the importance of the sibling bond and all the circumstances of this case she attached more weight to the sibling relationship, which led her to conclude that adoption was necessary.”
13.The judge thus correctly recognised (paras 26, 34) that a family placement with I and R was a viable and realistic option. In that context, it is important to appreciate the point made by McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793, paras 70-71:

“70 With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.

71 The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.”

(The Court of Appeal judgment doesn’t get into the ‘fulcrum’ metaphor which permeated Re W, in particular where the balance falls in a case BEFORE placement order is made and child placed – remember that in Re W, the child by that stage had been placed with prospective adopters.
https://suesspiciousminds.com/2016/07/29/re-w-no-presumption-for-a-child-to-be-brought-up-by-a-member-of-the-natural-family/ )

The trial Judge decided that it was in B’s interests to make the Care Order and Placement Order, so that B could grow up with H.

15.The judge then set out (paras 56-62) her analysis of the “pros and cons of an adoptive placement.” She began with this (paras 56-57):


“56 One advantage of adoption is that [B] will be brought up with her nearest relative, a full sibling. This would mean that she would never be alone, she would have the shared experiences of being brought up in the same household, which will promote identity and self-esteem. The research which I have been referred to suggests that the sibling relationship is emotionally powerful and critically important, not only in childhood but over the course of a lifetime. People spend more time with their siblings than anyone else. Growing up with a sibling enables one to learn social skills, sharing and managing conflict and negotiating. The relationship can provide a significant source of continuity throughout a child’s lifetime and is likely to be the longest relationship most people experience.

57 For children going into care it is generally accepted that siblings should be placed together unless it is contrary to an individual child’s welfare needs. A shared history and experiences help self-identity and self-esteem because siblings provide support and companionship. An adoptive placement with her brother would mitigate against the loss of the relationship with her parents. This would be a lifelong relationship with her brother which would be promoted. The impact of becoming an adopted person, with the severance of legal and emotional ties with her parents and family, would also be mitigated by the shared experience of being with her brother.”
16.As against that (para 61):

“The disadvantages of an adoption placement include severance of the links with the biological family. This can mean a real sense of loss, particularly to children when they get older and realise that they have not brought up within their biological family. It can also have a negative impact on their sense of identity and belonging. It will result in a loss of [B]’s relationship with her parents because there would be no direct contact with them. There would be a probable loss of contact with the extended family because it is unlikely that [B] will have contact with her half-siblings or with [I] and [R] and their family.”
17.The judge concluded with a section (paras 63-69) headed “Decision.” She began (paras 63-64):

“63 In the final analysis the court must decide whether the advantages associated with the sibling relationship outweigh the relationship with other family members: the parents, half-siblings, [I] and the wider family. This is the balancing exercise between the factors set out in Sections 1(4)(c) and (f) of the 2002 Act. I have already set out the benefits of the sibling relationship. Although there is no existing relationship between the siblings once the children are living in the same household one is likely to develop rapidly, given their closeness in age. I acknowledge the argument that to prioritise the relationship with a brother will be at the expense of all other family relationships. They do not have an existing relationship which can currently be given weight to, but rather the potential for a unique relationship lasting throughout their lives which the Guardian and social worker say should be prioritised.

64 The reality and quality of a continuing relationship with other family members is very relevant here therefore. As I have identified already, the relationship with her parents is likely to be very limited. [Her father] is likely to be in [Africa], so contact will be indirect with possible occasional visits to [Africa] … Contact with the mother is likely to be either non-existent or problematic and potentially disruptive and unsettling. [B] has no existing relationship with her half-siblings, but only the potential for one. That is likely to be very limited. Those children are all quite a bit older than her and may or may not develop a bond.”
18.She continued (paras 66-67):

“66 When considering [B]’s welfare throughout her life the scales tip in favour of prioritising the relationship with her brother for all the positive advantages that will bring her set out above. What makes this case particularly difficult and finely balanced is the cultural dimension. However, a close examination of what benefits [B] would actually derive from a placement with [I] and [R] reveals that [and she then set out various matters which I do not propose to repeat as they might lead to the identification of the family. She went on:] The practicalities and financial cost of frequent visits to [Africa] may prove problematic.

67 Whilst a placement with [H] does not provide the cultural match which a placement with [I] could offer, the adopters have some cultural similarities and living with her brother would boost her identity because of growing up with her closest relative. His heritage and identity and early childhood experience of a foster placement at birth and then one stable placement afterwards, exactly mirrors her own. All this has led me to conclude that this is the over-riding requirement pertaining to [B]’s best interests throughout her life. Having reached that conclusion, I am satisfied that an adoption order is necessary to meet [B]’s needs and proportionate in all the circumstances of the case.”
19.The judge concluded as follows (paras 68-69):

“68 Whilst this is more interventionist than a placement with [I] and [R], it has the benefit of permanency now. There will be no further delay. It will avoid the testing out of a placement with [I] and [R] and reduce the risks and uncertainties for [B] all of which adds weight to the decision that I have come to.

The father and I and R appealed – understandably on the basis that the Court had not squared the case with the “nothing else will do” principle – but rather had decided that Placement Order was the better of two choices.

The Court of Appeal, lead judgment by the President, praised the careful and analytical approach of the trial Judge and upheld the decision. It was permissible for a Judge to give more weight to the option of B being placed with a sibling than B being placed within the family (even where there was a viable and realistic alternative family placement)

23.The central core of the father’s complaint relates to the judge’s application – in his counsel’s submissions, her misapplication – of the principles in Re T, the essence of the complaint being that the judge had, in conflict with those principles, treated the matter as a competition between the adopters and the kinship carers and, illegitimately, been drawn into an inquiry as to which would be the ‘better’ placement. As the passages from her judgment (judgment, paras 20, 21 and 25) which I have set out demonstrate, that is not what the judge said she was doing or what she thought she was doing. Nor, in my judgment, is that what she was in fact doing. On the contrary, she was carefully, conscientiously and, in my judgment, correctly applying the learning in Re T.

24.How else was the judge to proceed? She was confronted with the fact – the reality – that B’s only full sibling, H, a sibling close to her in age, had been adopted and that H’s adoptive parents were willing to adopt B. That was not something the judge could ignore, as it were put out of her mind, if she was to comply with her statutory duty under section 1(4) and in particular section 1(4)(f) of the 2002 Act. And in having regard to that objective, factual, reality, the judge was doing nothing inconsistent with the learning in Re T and the earlier authorities to which I have referred.

25.As Mr Tyler and Ms James pointedly observe, there is nothing in Re T to say that the court can ignore a crucial factor which is necessarily concomitant with a particular placement. The presence of H in B’s life must fall in the credit side of the balance sheet in relation to placement with H’s adopters, just as the loss of H must fall in the debit side in relation to the kinship placement; to ignore this would, they say, be a nonsense. I agree.

26.Complaint is also made, in particular by Ms Fottrell and Ms MacLynn, that the judge never grappled with the question of whether adoption per se was required for B and, in consequence, that she truncated the adoption process and, in effect, approached the case as if she was deciding an adoption application and on the assumption that, immediately following the making of the placement order, B would be placed for adoption by H’s adoptive parents. I do not agree. The judge was well aware that she was considering only the making (if appropriate) of care and placement orders as a prelude to the entirely separate adoption proceedings which, if she made those orders, would no doubt follow in due course. And, in circumstances where the fact and reality was that H had been adopted by those who were offering a similar placement for B, the distinction between adoption per se and adoption by H’s adoptive parents is more apparent than real.

27.The father complains that the process adopted by the judge meant that she ended up weighing the ‘known’ uncertainties in respect of the proposed kinship carers against the certainties of the adoptive placement. That, it is said, was an unfair half-way house; the judge, on this approach, should have embarked upon a full welfare evaluation and comparison of each prospective placement. I do not agree. The judge knew all that she needed to know about the possible placement with H’s adoptive parents to be able properly to carry out, and in a manner compatible with Re T, the task she was embarked upon. Indeed, to go further into that aspect of the matter than she did would have risked offending against the principle in Re T.

28.In relation to the other grounds of appeal I can be quite brief. The father complains that the judge erred in prioritising B’s relationship with H over her relationships with her wider family, in placing too much emphasis on the sibling relationship, and in attaching too little weight to ‘nothing else will do’. I do not agree. The judge did not prioritise either of these placements – both, it is to be noted, family placements – over the other. She treated each as being viable and realistic and carefully evaluated the competing evidence and arguments before coming to her conclusion. The fact that her conclusion favoured X rather than Y does not mean that the judge was prioritising X over Y. Her conclusion that, in all the circumstances, B’s future relationship with H throughout their lives tipped the balance and was determinative of the outcome, was, in my judgment, securely founded in the evidence the judge had heard and, as I have already said, was plainly open to her.

29.I can take the two remaining grounds – that the judge placed too much weight on the ‘untested’ nature of the placement with I and R while failing to acknowledge that the placement with H’s adopters was equally untested; and that she was too focused on avoiding the potential delay and failed to balance the purpose of such delay to B’s best interests – together. The judge, in my judgment, was entitled to have regard to these factors, and it was for her to determine how much weight to attach to them. In fact, as we have seen, she did not attribute determinative weight to other of them. As her judgment makes clear (judgment, para 68) their impact was merely to “add … weight to the decision that I have come to.”

This is a very difficult one. I have no doubt that prior to 2013, the decision to place B with her sibling (having ruled out her parents for reasons that we don’t know about) would have been an arguably correct decision both on the facts and the law. I don’t see how it does square with Re B.

Let’s remind ourselves what the test for making a Placement Order is, as set down by the Supreme Court

“only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.

But also the apparent dilution of that by the Court of Appeal in Re W 2016 that welfare analysis and evaluation is actually the be-all and end-all

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons

I think that it is POSSIBLE for a Court to decide that, for B, her overriding requirement is to be placed with her sibling, and no other placement option is able to deliver that and therefore that nothing else but adoption will do. But neither the Trial Judge nor the Court of Appeal actually spell that out.

The case reads like a straight welfare shootout (a well-considered and thoughtful shootout, but one nonetheless which doesn’t really engage with the spirit or the letter of Re B)
And of course, there’s a counter argument to that. If the Courts are saying that placement with a sibling is such a powerful factor that it can override other factors, then what happens with all those cases where the LA care plan is to split a sibling group and the only way they can stay together is to be with a parent – even where the quality of care would fall below ‘good enough’

If having the sibling relationship endure is a reason to discount ‘viable and realistic’ family members on the one hand, then why is it not a reason for preferring a family placement to a placement in care where the family placement would keep them together?

OR, as happens frequently – one child is young enough to be adopted, but another is to be placed in foster care – and the parents understandably would want both children placed together. In those scenarios, unlike B and H, the sibling group will actually have met and have a relationship.

[These are all cases where the well-known authority of Sauce for Goose v Sauce4Ganda 1621 may be deployed]

(I’ll stress again that the Court of Appeal are not saying here that the sibling placement MUST triumph over family placement or that it MUST be given greater weight – they are saying that the Judge in this case was ABLE to decide this the way she did, because she had very carefully thought about the evidence and the law. Another Judge could decide the reverse in a similar set of facts, provided they very carefully think about the evidence and the law. It is NOT sibling rights beat family rights. It is NOT that. )

I think the treatment of ‘nothing else will do’ is a bit of a Jedi hand-wave here. We are getting closer and closer to the old state of play – which was ‘what decision is the best for the child’s welfare’ and farther away from what the Supreme Court were talking about with adoption and placement orders being a very high bar that the State have to meet.

In the meantime, expect any case where a sibling has previously been adopted to have urgent enquiries being prompted by the social worker or Guardian as to whether those adopters put themselves forward for this child. The Court CAN take account of it if there’s a definite commitment to do so (even though they might not be matched by Panel). What is the Court going to do if the adopters of the siblings say that they are ‘open to it’ or ‘thinking it over’? Can they give that any weight at all?

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Re W – no presumption for a child to be brought up by a member of the natural family

Posted on July 29, 2016 by suesspiciousminds

 

This was a Court of Appeal case decided today.  It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

 

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

 

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made.  A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them.  [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

 

A powerful comment

 

This is not legally significant, but it was very punchy and wise, from Jackson LJ

 

 

  • As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

 

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

 

  • If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
  • I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
  • I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
  • The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

 

Powerful stuff.  I hope that heed is taken of it.

 

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much.  So HOORAY for this

 

 

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

 

Issues for the appeal

 

 

  • This appeal raises the following issues which may be of general importance:

 

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’   (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled  “WORMS, Do not open”

Because they can can can

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters.  And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible.  (That’s exactly the way that Bodey J –  one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals.    [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one.  If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

  • Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

  • Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

  • With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.
  • The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

…

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.‘

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test.  My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

  • In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.
  • It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.
  • The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.
  • As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

The problem with that formulation, of course, is that ‘necessary’  in the context of Adoption, means  “nothing else will do”  or to put it fully from Re B  “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.  ”      .    It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption.  If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order.   Para 74  iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

 

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

 

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

 

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or  presumption)  – but all things being equal, the scales will tip that way.  However, AFTER a Placement Order has been made and the child is placed with prospective adopters

 

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

 

So in a post placement case, the issue becomes that of welfare of the child  with both sides to be weighed in the balance.  (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. ..   Possibly the last sentence  of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible.  Man, that’s a LOT of weight to carry.)

 

 

The Court of Appeal also looked at the article 8 issues

 

 

  • The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
  • If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

 

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

 

 

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

 

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

 

What's in the box, Jokey? What's IN THE BOX?

What’s in the box, Jokey? What’s IN THE BOX?

 

 

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