Tag Archives: adoption

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

Posted on August 6, 2013 by suesspiciousminds

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

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

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

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

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

In broad terms, this is the order of events

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

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

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

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

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

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

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

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

 

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

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

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

They develop this further – underlining mine

  1. In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
  1. The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.
  1. One only has to take an extreme example of the effect of linear consideration to see the potential danger for this approach. The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at ‘rehabilitation to a parent’ as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable. I hope, however, that this example demonstrates how inappropriate the linear model is for a judge who is tasked with undertaking a multi-faceted evaluation of a child’s welfare at the end of which one of a range of options has to be chosen.

And later

  1. A further concern about the linear model is that a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.
  1. In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge’s judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

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

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

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

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

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

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

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

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

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Supreme Court and emotional harm

Posted on June 12, 2013 by suesspiciousminds

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  – I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

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“The peril of Auntie Beryl”

Posted on June 3, 2013 by suesspiciousminds

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   – not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency 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.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

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

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

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

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

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

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

(b) adoption;

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

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

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“As a drunkard uses a lamppost…”

Posted on May 14, 2013 by suesspiciousminds

 

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

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

 

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

 

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

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

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

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

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

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

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

 

As the other CAFCASS stats show

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

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

 

 

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

 

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

 

 

 

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

 

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

 

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

 

 

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

 

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

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

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

(b) gives notice to them of its opinion

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

 

 

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

 

  1. Section 35(5) provides:

“Where –

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

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

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

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

 

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

 

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

 

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

 

The case can be found here

 

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

 

 

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

 

 

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

 

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

 

 

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

 

 

 

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

 

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

 

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

 

 

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

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

 

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

 

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

 

 

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

 

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Neglecting neglect

Posted on January 21, 2013 by suesspiciousminds

 

The Parliamentary report on child protection, and a discussion of it.

One of the nice things about doing this blog is that some of my visitors will from time to time send me something that I might otherwise have missed.  I knew that this Parliamentary enquiry had been going on, but not that the report had yet been published.

 

You can find it here:-

 

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137.pdf 

 

 

They seem, on the whole, to be broadly supportive of the system, which is no doubt a disappointment to many of my readers.  They do recognise that there are serious problems within it, and make some recommendations.  They particularly felt, as the mainstream media picked up, that the child protection system isn’t a great fit for adolescents and that they get marginalised by the process.

 

 

One of the topics they looked at was neglect  (see also all of the blog posts I’ve done recently on the neglect and neuroscience issue)

 

Neglect

 

Neglect is the most common form of child abuse in England. Having looked at both the criminal and civil definitions of neglect, we recommend that the Government investigate thoroughly whether the narrow scope of the criminal definition contained in the Children and Young Persons Act 1933 is causing problems in bringing criminal cases of neglect, but we have seen no convincing evidence that the civil definition is insufficient.

 

To get a better picture of the scale of neglect, we recommend that the Government commission research to investigate whether similar situations and behaviours are being classified as neglect in different local authorities.

 

There is evidence that children have been left too long in neglectful situations. To tackle this, child protection guidance for all front-line professionals should include an understanding of the long-term developmental consequences of neglect and the urgency of early intervention. Securing positive outcomes and meeting the needs of the child should come before all other considerations, and there needs to be a continued shift in culture so that there is earlier protection and safeguarding of the long-term needs of children. The Government must be prepared to act if there are signs that improvement in the responsiveness of local authorities to neglect is not being sustained.

In cases of domestic violence, the focus should be on supporting the abused parent and helping them to protect their children, but the interests of the children must come first.

 

 

It did seem to me (subject to rigour in how the research is done) that a piece of research on how neglect is managed throughout the country, and whether there are fluctuations in what is considered to be neglect in different regions, is a valid and worthwhile exercise.  Child protection is a massively expensive and resource-intensive undertaking in this country, and if there are lessons that could be taken from the way certain local authorities tackle and overcome neglect, that would be useful information to share around.

 

 

They also looked at the issue of adoption, and in particular the competing current desires of the Government to speed up adoption and the campaigners against ‘forced adoption’

 

216. We endorse the Government’s current policy emphasis on increasing the number of children adopted, speeding up the process and facilitating foster-to-adopt arrangements. Adoption is clearly the preferred route to permanence and stability for some children. However, the same goal can be achieved by other means and it is vital that the Government and those in local authorities continue to concentrate effort and resources on prioritising stability in placements for all children, whether through longterm fostering, Special Guardianship or residential care. We would welcome greater debate on policies which might bring this about and greater encouragement from Government for these alternative solutions. In particular, while we recognise that an artificial limit on the number of times a child can be moved within the system would be unworkable, there should be increased emphasis in central guidance aimed at limiting the disruption and damage caused to vulnerable children by frequent changes.

 

217. We have listened with sympathy to concerns about widespread ‘forced adoption’, and to the very personal and moving stories that often lay behind them. It is evident that there are rogue misjudged cases with terrible consequences for those involved. This should not happen and those affected are right to fight against such injustice. Nevertheless, the weight of research evidence, matched by evidence to our inquiry, concluded that that the balance tended to lie with authorities not taking children into care or adoption early enough, rather than removing children from their parents without due cause.

 

We note that the Minister spoke of “work in progress” to look at “what further safeguards we might be able to institute whereby there is a sort of appeals mechanism”. This would have to be balanced against the further delay to a permanent solution for the child which would inevitably occur as a result.  An appeals mechanism against “forced” adoption is an interesting idea and we look forward to examining the Minister’s proposals when they are published.

 

 

As do I.

 

I’m rather surprised that the Minister spoke to them about introducing a ‘sort of appeals mechanism’ given that there is already an actual appeal mechanism.

 

So either :-

 

(a)   He doesn’t know that there is already  an appeal mechanism

(b)   He is planning to lower the test for appeals in Placement Order or adoption cases, from mistake in law or the Judge being plainly wrong to something lower

(c)   He is planning to introduce a mechanism whereby the Placement Order or adoption order can be appealed at a different stage in the process  (which would have to be later than at present)

OR even

(d)   That there is a plan for an appeal mechanism for Placement Orders which will sit outside of the legal appeal process, i.e that the appeal would be considered by a body outside the judiciary, and contemplating different principles than at present.

 

 

I’m not sure which of those possibilities I find most problematic, but any of them without a lot of proper thought first is worrying.  

 

 

I noted in the passage above that that the Committee touched upon the evidence of Martin Narey

 

215. The importance of permanence and stability is underlined by the shocking evidence we received of the number of times some children move in the course of their time in care.

 

It is clearly damaging to children to move from one form of care to another frequently; and yet we spoke to children who had moved multiple times—in one case up to 16. Martin Narey told us that he had “met countless children who have had 24 or 25 foster placements and 21 or 22 different schools”.396 He added: “We would never dream of doing this to our children and for some children the very best option for them is […] high quality residential care”.397

 

 

 

Well, I agree with all of the principles set out there, and I am sure that the Committee really did speak to children who had moved up to 16 times, which is an awful and horrific tragedy. I am also sure, sadly, that there have been children in the care system who have had 24 or 25 foster placements.

 

I am somewhat sceptical, to put it mildly, that Mr Narey has met “countless” such children.  I think this is rather on a par with his comments about having asked to see a child’s social work files which were then literally brought into the room in a wheelbarrow.

 

I don’t think this sort of hyperbolae helps, when it comes from someone helping the Government form really important policy.

 

Every child who has multiple placements is a bloody tragedy. Those children who have had dozens or more are a huge tragedy. Every child who has had 24 foster placements is a disgrace   (there might well be really strong underpinning reasons, usually connected with the child’s damaged behaviour but that doesn’t stop the outcome being disgraceful)  and we really should learn as much as possible from it and stop this happening to any child in the future.  But to suggest that it is happening to so many children that Martin Narey has met “countless” is I think rather disingenuous.  

 

Or perhaps my concept of countless is more than Mr Narey’s – it depends on how good you are at counting, I suppose.

 

[All just my personal opinion, perhaps Mr Narey really has met over a thousand children, which would be around where I’d consider a number to be countless, who have had 25 placements.  I guess if he is disputing my suggestion that he hasn’t met ‘countless children’, he would need to show that he had met a significant number, which would mean him counting them, so they couldn’t then  be countless…]

 

Let me be plain, I consider that a single child who has 24 foster placements is a child too many. I just don’t care much for hyperbolae when giving evidence.

 

The Committee also talked about newer and more specialised forms of abuse and risk, they considered the technological side of things with paedophilia over the internet, child trafficking, child prostitution, forced marriage, and suggested that there was a need to build up specialist expertise in this area, and for those authorities who were encountering it to share their expertise with others

 

We recommend that the College of Social Work take a leading role in co-ordinating and promoting awareness of CPD training in specialised forms of abuse and in encouraging other disciplines to participate in relevant courses. For more general use, if the guidance on specialised forms of abuse is to be deleted from Working Together, the Government needs to make clear where such guidance will be found in future and how it will be updated and signposted to social workers and other professionals. (Paragraph 133)

 

17. We are also concerned that professionals faced with a specific type of abuse with which they are not familiar should have an identifiable source of expertise to consult in person. Local authorities should nominate a specialised child abuse practitioner to lead on such matters. Where an authority has a low incidence of a particular form of child abuse, they should be able to draw on the expertise of nominated practitioners in other authorities. (Paragraph 134)

 

 

 

I think the most controversial paragraph, and certainly the one which will provoke ire in some quarters, will be this one:-

 

 

We welcome the research by Cafcass into applications for care orders and recommend that this work be repeated on a regular basis. An assessment of the reasons behind the local variability in care applications is needed. We also believe that it is essential to promote a more positive picture of care to young people and to the public in general. The young people to whom we spoke were generally very positive about their experiences, including those who had spent time in children’s homes. This is backed by academic research on outcomes. Ministers should encourage public awareness of the fact that being taken into care can be of great benefit to children.

 

In the words of Bill Hicks – “it’s not a popular opinion, you don’t hear it very often”

 

 

Perhaps in that vein, the next Commons Committee will be on “Assessing the Costs and Benefits of using terminal ill people as stunt doubles.”

 

[And I know that makes no sense to you whatsoever if you’re not familiar with the work of Mr Hicks  “I know to a lot of you this might sound a little cruel… ‘Aw Bill, terminally ill stunt people? That’s cruel’…. Well hear me out..”]

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If you’re thinking of placing my baby, it don’t matter if it’s black or white

Posted on November 13, 2012 by suesspiciousminds

[Well, this is almost certainly the only time Michael Jackson has appeared in a blog on child protection…oh, wait, maybe not]

The Government have published its draft proposals to amend the Adoption and Children Act 2002.

They can be found here :-

http://www.official-documents.gov.uk/document/cm84/8473/8473.pdf

The first is a duty on Local Authorities to place children who they intend to adopt in a Fostering for Adoption placement (more usually called ‘concurrency’ placement) if possible.

The second is the removal of section 1 (5) from the Act.

Section 1(5) currently reads :- In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

And it follows section 1(4) which is the welfare checklist.

It seems to be the view of the Government that those meddling politically correct Local Authorities   (can you be politically correct if politicians correct you?)  have been viewing s 1(5) as if it has superior status to s 1 (4)  – in which case, the thing to do would have been to shift it to one item in the welfare checklist, surely?

So they have just nuked it from orbit, that being, after all, the only way to be sure.

So the new section 1(5) will say “In Wales only In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

For some reason there aren’t any politically correct meddling do-gooder social workers, or perhaps there are no ethnic minorities, or maybe there’s some other reason inexplicable to me.

The explanatory notes do suggest that those factors still come into the welfare checklist as part of the child’s background and other relevant characteristics; but will no longer require any additional weight.

I don’t know – I have seen in my travels about the country some quirky adoption panels who wanted to talk at length about the African heritage of someone whose paternal great–great-grandfather had been from Senegal, though the other 31/32nds of their heritage was British and had lived in Britain all their lives.  But on the other hand, I am not as convinced as Michael Gove seems to be that there is a queue of white people desperate to adopt children of ethnic minorities, if only those pesky social workers would let them.

Nor am I convinced that nuking s1(5) has any real impact on s33 (6) of the Children Act

(6)While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made;

So if the child in question had been more example, from parents who were practising Muslims, or Sikhs, I think there are still issues about whether a Local Authority is in breach of s33(6) by not at least TRYING to match with people who will follow that faith. If they search and fail, then so be it, but it seems to me that s33(6) still envisages that a LA will try to have the child brought up in the religious faith he or she would have been brought up in had the Care Order (and by extension Placement Order) were not made.

Unless we’re going to start doing that nifty and little known Adoption and Children  Act trick where you can make a section 21 Placement Order without ever making a Care Order PROVIDED the threshold criteria are made out.  (I’ve only ever done that once, in a peculiar case where the parents agreed s20 of the child and so care order wasn’t needed, but opposed Placement Order)

Anyway, if you have a view on the proposals, feed them back to the Government. They seem to be happy to make policy on about 50 people responding to a consultation, so you may be in luck…

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Are you trying to tempt me, because I come from the land of plenty?

Posted on October 19, 2012 by suesspiciousminds

A discussion of the South Australian Parliamentary apology for forced adoptions.

[I have edited this, due to stupidity on my part on not realising that the Australian definition of ‘forced adoption’ is different from that used by critics of our UK system. It nagged away at me, so I looked at it more carefully and cleaned this up. Apologies to anyone who has had to read it twice, and potentially been given a misdirection by the first version, which was rubbish. My apology is heartfelt, but not as moving as the Australian apology that I’m blogging about]

The Australian term ‘forced adoption’ refers to the policy in the 60s and 70s of compulsory and wholesale removal of babies and infants from Aboriginal mothers (*and I am corrected by a helpful commenter, also from white mothers, both in massive numbers)  and placement with more middle class  families.  It is vital to realise that this policy was not only lawful, but came about because professionals who believed this was in the best interests of the children had persuaded legislators that it was right.  The value of the apology is therefore chiefly about recognising that what can be accepted good practice on the State’s role in the lives of children can in later years seem not only catastrophically wrong, but actually abusive.

The Australian ‘forced adoption’ , although much more pernicious and racially dubious, is more akin I think to our UK Victorian values whereby unmarried mothers either gave up their babies or were committed to madhouses.

I know that this is a different country, and I don’t like the term ‘forced adoptions’  (just as, I suspect, Ian Josephs of the Forced Adoption website doesn’t like an awful lot of the terms that are used in Court proceedings, like ‘family justice’, so fair play)

I’m aware that Australia’s level of adoption is about half that of the UK, and much much lower than the US.  I suspect that adoption remains an emotive topic in Australia, and some of the language used in the apology can really be embraced by the critics of our current system.

But Australia doesn’t seem all that different to us (apart from the being tanned and good at sports thing).  We have a common language, and a fairly similar country. So when they condemn the practice of adopting children against the wishes of the parents, it bears a bit more listening to than when you hear that some country that we share no cultural overlaps with have done it.

I’m not in a position to argue whether the UK approach is right, or the Australian approach is right, but if two countries with fairly similar outlooks on life and one presumes broadly similar social problems, can reach such markedly different conclusions, then there’s a genuine debate to be had.

  In any event, it highlights the point that what is culturally acceptable and considered good practice may appear abhorrent to a later generation, and we should have an eye on the fact that dogma can be wrong.  No doubt our critics will say that such an apology may come in the future, and is long overdue. Who am I to say that they are wrong? If you had asked the Australian legislators and professionals whether history would judge them harshly, I’m sure they would have robustly denied this as a possibility.

This bit is from the Premier,  John Wetherill

“These adoption practices were the product of multiple failures. They failed to meet a basic standard, whether or not they were in accordance with the law at the time. They reflected a failure to apply a simple test of human conduct – a test which we should all try to apply to ourselves every day. They reflected a failure to ask what has become a famous question: how would I feel if this were done to me? For those failures, and for everything they led to, we are sorry…”

 

“We apologise for the lies, the fear, the silence, the deceptions. We apologise for the lack of respect, the disbelief, the grief, the trauma and loss. We offer this unreserved apology not just as an act of atonement but as an expression of open-hearted admiration and support for those to whom it is owed. I commend the motion to the house.”

And this bit is the speech given by their equivalent of Ed Milliband, but don’t hold that against him, he seems like a nice chap.  You can read that HERE

http://www.johngardnermp.com.au/parliament/speeches/951-18-july-2012-forced-adoption-apology.html

but I’m going to publish the whole thing, because it is (A) interesting and (B) it took me forever to find it, so at least publishing it makes it slightly easier to find for someone else.

Mr GARDNER (Morialta) (11:36):Today our galleries are full to overflowing. It is sadly ironic, perhaps, that on a day when we gather here as a special sitting of this house to acknowledge the past adoption practices that have caused such distress, it is because of another overhang of the 19th and 20th centuries—the asbestos in the House of Assembly chamber—that we are denied the opportunity to have that chamber available, where so many more people might have had the opportunity to see this directly.I welcome all those mothers, sons, daughters, family members and other people who have been affected to our galleries today. I acknowledge also those in other rooms of the parliament who are watching this live and those people who are watching the web stream. We are grateful that that has been made available on this occasion. Many more people, of course, are watching through that online.I recognise the contributions made by the Premier, the minister, and the Leader of the Opposition on behalf of the Liberal Party in particular, but also in seconding the motion to the parliament. This afternoon, members of the Legislative Council will have an opportunity to comment on the apology, and other members of the house in due course.It is an important day for the South Australian community. It is an important day for this parliament and the institutions that this parliament is responsible for. Most importantly, of course, it is an important day for those affected by past adoption practices: the mothers, the sons and the daughters, and their families, so many of whom are here bearing witness today. Madam Speaker, with your leave, I seek leave to directly address my opening remarks to them.

To the mothers who had their babies taken away from them, we know that an apology cannot return a child who was taken for so many years. The loss of a son or daughter taken cannot be restored by a simply apology. Words alone cannot heal the hurt that you have suffered over decades. We hope, though, that they may provide some comfort. You may at least walk from this building feeling vindicated that your community understands that you did not freely give up your child and that your children and your community understand that you never gave up on your child either.

The coercion that led to your child’s adoption, whether it was overt or whether it was subtle, was brutal and wrong. It was inappropriate, it was unethical, it may have been illegal, and today this parliament makes a statement that it is condemned. It is condemned by this parliament on behalf of the institution itself and on behalf of the South Australian community.

On behalf of the parliament, which shares in the responsibility for these actions, we are sorry. In this day and age, children are put up for adoption in South Australia only when there is genuinely no opportunity for family to stay together and we work very hard to ensure that the very few adoptive parents who have this opportunity are everything that they might be; but in our history we have not always been so virtuous.

To the adoptees, to the sons and daughters who were taken at birth, I imagine that your experiences in life have been varied and diverse. Many of you may have been adopted into loving families who did their best for you at every turn. Some of you were not so fortunate, and your negative experiences make this apology all the more important.

Whatever the nature of your experience growing up, you share an understanding, a shared experience, a common bond; only you can truly understand what it is like to go through life for years—decades even—knowing that there is a missing piece. What was done to you, what was taken from you, the denial of a mother’s love and the kinship of your blood brothers and sisters, was wrong, and, on behalf of this parliament, which shares in the responsibility for these actions, we are sorry.

While the centrepiece of this apology is an acceptance and an expression of sorrow for the denial of informed consent when children were taken from mothers at birth, its terms are broad, and with good reason. I commend the government for the framing of this motion. We are apologising for a wide range of practices that have caused hurt and distress. We are apologising for a range of practices that have led to a varied set of experiences.

My own experience was to grow up knowing a beautiful, loving big sister. She was adopted with love by our father and her mother. She has done well in life. She has been successful in her career. She has the most beautiful, charming and caring daughter that any of you here are ever likely to meet. However, what I could not have understood growing up was her sense that there was a missing piece in her life. Nearly 30 years later, she discovered that she had been separated at birth from her twin brother who now lived across the country. Last night she wrote to me on Facebook, in a sign of the times, with her thoughts on what we are doing today. She said:

It is such an important day for all adoptees, their adopted families and their mothers that gave up their babies so many years ago. Tomorrow—

this was written last night—

is a day to reflect on the past. I have been one of the lucky ones who have found both my twin brother…and also been able to tell our birth mother that we do not blame her for what has happened in the past and that we look forward to the future as brother and sister. Thank you for your support in this.

Despite not knowing each other for nearly the first 30 years of their lives, they have a bond of iron that stretches from Perth to Brisbane.

Twins were separated at birth all over the world, just as they were in South Australia, but that does not make it right. That does not make it acceptable. For that, and for so many other practices undertaken in our community by our government and non-government institutions with the endorsement of the parliaments of the day, either tacitly or overtly, we are sorry.

Members of parliament on both sides over the last several months in particular, but for a number of years before, have heard so many stories from mothers and adoptees about things that have happened to their families: stories of mothers prevented from seeing their child during and after childbirth; stories of mums hearing their babies’ cries and wanting to hold them but being denied; stories of mums who could not hear their babies’ cries and wanting to find out why but who were held down and denied the opportunity; stories of mothers drugged to reduce their resistance to the coercion and drugged to dry up their milk.

In originally moving this motion encouraging the government to undertake this apology on 29 March, I said that in addition to the lack of financial support provided to unwed mothers there were also cases where they were subjected to grooming by those around them and pressure, including from state institutions. Moved from their community into the confines of a home, women were told that adoption was the right thing to do and the best thing for the child. Women had the details of their pregnancy and the future of their child concealed, while alternatives to adoption and information on potential financial assistance was often withheld. Relinquishing a child for adoption was often a traumatic process, and mothers have detailed their accounts to us and to the Senate inquiry, and the minister, the Premier and the Leader of the Opposition have detailed some of those accounts today.

In many cases consent was surrendered under duress, others were denied the right to revoke consent and some had the right to consent withheld altogether. There is no excuse that it is based on the understanding, the morality, of the time. There were people at the time who were saying that these practices were wrong. There is record of that. There was no Christian morality in what was going on there. I have had calls recently to be reminded of the Ten Commandments in relation to another matter, and I can tell you that commandment 4 is, ‘Honour thy father and thy mother.’ These children, these adoptees, were denied the opportunity to do that. Commandment 7 is, ‘Thou shall not steal.’ These children were stolen. There was no morality in this.

The value of an apology is important. It is a moment of healing, reconciliation and opportunity for the parliament to demonstrate to those who are hurt that we have respect for you and that you are vindicated—those who have felt hurt all these years. When we as individuals going about our business commit a wrong we apologise, and when an institution commits a wrong its representatives must apologise, and we do so today.

We follow in the steps of the first apology of this nature in Australia undertaken on 9 June 2009 by the Royal Brisbane and Women’s Hospital, the Western Australian parliament on 19 October 2010, a number of other non-government institutions and churches that have done so since then, the Senate inquiry reporting in February (and I look forward to further activity at a federal level), the support of the Liberal party room, the Greens, the Labor party room, the government and bipartisan support in this house.

It is a time for healing and reconciliation, and we applaud those who have had the courage to come forward and to contribute to this apology. I conclude by reflecting the words of the Premier earlier:

This South Australian parliament recognises that the lives of many members of the South Australian community have been adversely affected by adoption practices which have caused deep distress and hurt, especially for mothers and their sons and daughters, who are now adults.

We recognise that past adoption practices have profoundly affected the lives of not only these people but also fathers, grandparents, siblings, partners and other family members.

We accept with profound sorrow that many mothers did not give informed consent to the adoption of their children.

To those mothers who were denied the opportunity to love and care for their children, we are deeply sorry.

We recognise that practices of our past mean that there are some members of our community who remain disconnected from their families of origin.

To [the adoptees] who were denied the opportunity to be loved and cared for by their families of origin, we are deeply sorry.

To those people who were disbelieved for so long, we hear you now; we acknowledge your pain, and we offer you our unreserved and sincere regret and sorrow for those injustices.

To all those hurt, we say sorry.

Honourable members: Hear, hear!

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Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

https://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home’

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

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We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted on July 23, 2012 by suesspiciousminds

 An analysis of the Government’s consultation on placement of siblings and contact post placement

 

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

 

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard‘

 

But I digress…

The consultation on sibling placements can be found here:-

Click to access placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

Click to access contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

 

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a  McDonalds with a shiny pound coin in hand  and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

 

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

 

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document  and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

 

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

 

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

 

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

 

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

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