RSS Feed

Tag Archives: adoption case law

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

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?

Advertisements

Adoption rates in freefall

I’ve been asked if I would write about the story in the newspapers this week about adoption rates going down and the blame being placed on some high profile case law decisions. This is the first time that I have ever received a request, so I should oblige.  [If anyone’s future request is that I write about my love of Jaime Lannister, or that Joe Hill’s Locke and Key is the best comic series since Grant Morrison’s run on Doom Patrol, then for those, it’s on like Donkey Kong]

 

The Painting that Ate Paris (Doom Patrol)

The Painting that Ate Paris (Doom Patrol)

 

Locke and Key - this is what happens when you use the Head key to look inside your own mind

Locke and Key – this is what happens when you use the Head key to look inside your own mind

 

 

So, here is the Independent piece – there’s a startlingly similar one in the The Times, but you need to pay Rupert Murdoch money to look at it. The choice is yours.

http://www.independent.co.uk/news/uk/home-news/adoption-rates-in-freefall-after-court-ruling-leaves-children-languishing-in-unsuitable-homes-10245614.html

 

This piece is very knowledgeable about family law and case law – more than you’d expect from a journalist. The fact that two newspaper articles with the same cases turned up this week makes me suspect a press release was involved.  The same piece appears on the BBC website.

 

Let’s have a look at it bit by bit.

The number of children being put forward for adoption has plummeted over the past year following a series of court rulings that have left local authorities frightened of removing them from birth families.

Child welfare experts are worried the decline will mean more children suffering in unsuitable and unsafe homes. It also means agonising delays for parents approved for adoption who now find no children are available.

The number of children signed off for adoption fell from 1,550 in the summer quarter of 2013 to 780 in the same period last year, down almost 50 per cent.  

 

Okay, well firstly, whilst one feels for an adopter who is waiting for a child, the family justice system isn’t, and shouldn’t be, prioritised to deliver children to adopters. The idea is that the family justice system tests fairly whether a parent can be helped to care for their child, with adoption being the last resort. Secondly, “Signed off for adoption” is not only a very ugly expression, it is hard to put a proper meaning on it. Does it mean “The Agency Decision maker decides that adoption is the plan the social worker should recommend to the Court”?  or does it mean “A Placement Order is made”?

As the Department for Education hasn’t published (yet) the statistics that is getting all of these newspapers up in arms, it is a bit difficult to tell. The thrust of the article suggests that the drop in figures is that Local Authorities are too scared to ask for adoption, so the assumption is that the drop here is in the number of APPLICATIONS for Placement Orders (i.e a social worker recommending to the Agency Decision Maker that adoption should be the plan and the ADM agreeing) – that in itself could be that social workers are asking the Agency Decision Maker less often, or that the Agency Decision Maker is saying no more often, or both.

That in turn could be because the thrust of the Re B, Re B-S et al decisions made social workers look harder and more carefully at whether adoption really was the right plan for a child – could more be done to support a parent, could those grandparents who are not ideal be good enough? Really hard to guage that from statistics – you’d need to have a look at a pile of actual cases and compare the sort of cases that were ending up with adoption in 2013 that are now ending up with parents or grandparents.  It is also difficult to know whether that’s a bad thing anyway. If the trend is to be more willing to work with parents or grandparents who are not perfect, but could be helped to be good enough, that could be a perfectly laudable aim. We might not know whether that greater willingness to give things a try was a long overdue adjustment or a bad mistake for a few years – the real test will be whether those attempts broke down.  At the moment, we can’t even tell if that’s what happened.

Certainly Local Authorities aren’t taking any less care proceedings than they used to. The latest CAFCASS statistics show that the number of applications is continuing to go up – 18% up on this time last year.

I honestly don’t think, and the recent clarifications from the Court of Appeal make this clear, that the caselaw ever meant that children should be “suffering in unsuitable and unsafe homes”. If the Court considers that the alternatives to adoption are unsuitable and unsafe, then adoption is going to be the outcome. Nothing has changed there. I also don’t think that social workers have decided to leave children “suffering in unsuitable and unsafe homes” as a result of Re B, Re B-S et al, rather than asking for adoption as the plan. What might have changed is that it is no longer enough to just assert that an alternative is ‘unsuitable’, but you have to evidence it. I don’t consider that a bad thing.

 

Next

But in November 2013 the President of the Family Court, Sir James Munby, made a ruling that left many local authorities convinced they must try every extended family member before putting a child up for adoption. The judge said that six-month targets for adoptions should not be allowed to break up families unnecessarily and that grandparents and other extended family members should be considered before placing children for adoption.

It had been hoped that a second ruling last December from the same judge, clarifying he had not changed the law in the original judgment, would curb the freefall in adoption numbers. But instead further rulings from Sir James and other judges have exacerbated the problem.

 

The first case is Re B-S  – and you can read my post about that case here https://suesspiciousminds.com/2013/09/17/this-is-some-serious-b-s/    – it was undoubtedly a big case, telling social workers, Guardians AND Judges that decision-making on adoption cases had gotten very sloppy and that the argument to justify making such a serious order needed to be clearer, stronger and more analytical. It was no longer enough to parrot stock phrases about why a child needed to be adopted – a proper comparison of the pros and cons of EACH option tailored for the individual child needed to take place. It is really hard to see much wrong with Re B-S. If anything, it should have been said years earlier. There’s nothing in it to suggest that a Court should leave a child ‘suffering in an unsafe and unsuitable home’

 

The scond case is Re R – and you can read my post about that case here https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  – that clarifies that some of the more outlandish claims that lawyers had pushed to extremes about Re B-S – that it was a “climb every mountain, ford every stream, follow every river – before you make a Placement Order” case was not right, but that everything I just said above was still right, and the Supreme Court’s formulation that “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”  was still bang on right.

 

Next – let’s have a look at these further confusing rulings

In January Sir James granted an appeal in a case in Liverpool where three children were taken away from a mother with a history of drug and alcohol abuse who was given no opportunity to prepare a case.

The President of the Family Court ruled that the “ruthlessly truncated process” employed by the earlier judge in the case – who had admitted he was motivated by a desire to embrace family justice reforms designed to encourage adoption – was “unprincipled and unfair”.

 

Well, that’s the His Honour Judge Dodds case, where he made Care Orders at the very first hearing (i.e in week one) in order to beat the week 26 target, even though nobody in the case had asked him to do that and there was no final evidence filed by anyone. That’s not a warning to Judges not to make adoption orders – that’s basic common sense that a Judge who behaves in a way that is utterly unfair is going to get overruled. Nobody with any common sense looked at that case and felt that it had worrying implications for adoption cases, or that it meant that children should be ‘suffering in unsuitable and unsafe homes” –  If you read this piece and think “Well, I don’t know why the Court of Appeal had any problem with what the Judge did” then I’m not sure I can help you. https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

 

What’s the next ‘confusing’ ruling?  (I wasn’t in any way confused by the last one) – this one apparently had a “similar chilling effect on Local Authorities desire to expedite adoption cases” as the His Honour Judge Dodds one did.  (not that it should have done – the Dodds one wasn’t even about adoption)

 

Another case decided in January is understood to have had a similar chilling effect on local authorities’ desire to expedite adoption cases. Mr Justice Keehan ruled that Northamptonshire County Council had made “egregious failures” in its handling of the case of a baby taken into care without proper assessments of the mother or the maternal grandparents in Latvia. The baby was eventually placed with his maternal grandparents.

I wrote about that one too – you may pick up a slightly different tone from the title of the piece https://suesspiciousminds.com/2015/02/03/unfortunate-and-woeful-local-authority-failings/

This was just an old-fashioned Local Authority f**k-up. Sorry to anyone involved, but that’s what it was. This wasn’t a case where Local Authorities read it and it had a chilling effect on them, making them think “gosh, if social workers are getting told off for this exemplary work, then we may as well pack it in and let children suffer in unsuitable and unsafe homes” – it was one that you read and thought “If you f**ked up as royally as that, you are going to get the judicial ass-whupping that they got”.   There’s nothing in that case that would make anyone think “well, I really think in my heart of hearts that this child should be adopted, but because the law has done something weird and stupid, I guess I’ll have to leave the child to suffer in an unsuitable and unsafe home”

[Yes, I’m hammering home that phrase, because I think it is seriously misleading]

If there are Local Authorities, or social workers (and I really doubt it) that took the His Honour Judge Dodds decision and the Northamptonshire decision and interpreted them as ‘adoption is even harder to get now’  rather than ‘if you really screw something up, expect not to get away with it” then these articles are doing a great public service in correcting that total misapprehension and interpretation of the law.

Anything else?

 

No, there are no other “chilling” or “confusing” cases cited.  That’s a shame, because one could make a case for the President’s decision in Re A fits the bill far better than the two examples they have chosen.  https://suesspiciousminds.com/2015/02/17/a-tottering-edifice-built-on-inadequate-foundations/

 

For a start, it is a case where a Local Authority asked for adoption and didn’t get it – and walked away with nothing but a flea in their ear. More than that, it is a case where what looked like perfectly decent threshold criteria (the concerns that a Local Authority have to prove exist in order to get an order) was torn to bits by the Judge. And finally, it had principles and issues which affected all cases, not just the particular one being decided (unlike the two examples that were used), and there is a distinct possibility that that bar was raised, making Care Orders (and hence indirectly Placement Orders and hence adoptions) more difficult to obtain, since it is now harder to prove that the threshold is met.

But once again, the law is not saying that children ought to suffer in unsuitable and unsafe homes. It is saying that where a Local Authority says that a child should live somewhere else, they need to produce proper evidence and analysis to show WHY their home would be unsuitable and unsafe. Re B-S and Re A are not saying that adoption isn’t the right outcome for some children, but they are saying that where the State (whether that be a social worker or a Judge) is taking a child permanently away from a parent, the least that society can expect is that they both work very hard and have proper evidence and reasons for why that has to happen.

Perhaps when the stats do come out, the adoption figures really will have ‘fallen off a cliff’, just as the article claims.  Perhaps that is because social workers, lawyers, Agency Decision Makers and Judges are paralysed by chilling and confusing case law. But it might be that the numbers were too high before, and proper scrutiny of the evidence and proper analysis of what is really involved has meant that we aren’t placing children for adoption unless the proper tests are met.

 

Sometimes, an initial look at something can make you chilled and scared, and even want to throw stones. But a longer more detailed careful consideration can make you realise that Jaime Lannister kicks ass y’all, and that a Lannister always pays his debts.

 

Plus, he has a gold hand. A hand made of gold. What's not to like?

Plus, he has a gold hand. A hand made of gold. What’s not to like?

Italian C-section case – the final chapter

 

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left.  It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose  (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

 

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

 

 

  • As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

 

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

 

  • The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

 

 

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

 

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.