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Discrimination on grounds of race – assessment of adopters

Posted on January 9, 2020 by suesspiciousminds

 

 

 

 

This is a civil case relating to a claim of direct discrimination on the grounds of race by Adopt Berkshire, an adoption agency involved in the assessment, recruitment and approval of adopters.

 

Mander & Anor v Royal Borough of Windsor & Maidenhead & Anor [2019] EWFC B64 (06 December 2019)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B64.html

 

 

 

Mr and Mrs Mander are British citizens, born in Britain and both are of Indian descent. They sought to become adopters and approached Adopt Berkshire to progress this.

 

An adoption social worker met with them and told them that Adopt Berkshire would not be progressing their assessment past the initial visit and that they would not be invited to fill in a form called ROI (Registration of Interest form).  That’s the form that progresses an expression of interest in adoption to starting the assessment process itself. Without that, there’s no assessment and thus no approval and thus no placement of a child.

 

Mr and Mrs Mander say that the social worker, Ms Shirley Popat, told them in terms that this was because they did not meet the racial profile of the children that Adopt Berkshire had available, and specifically that :-

 

 

 

 

 

 

 

 

 

 

 

(i) Adopt Berkshire only had white British pre-school children available for adoption;

 

 

 

 

 

(ii) this situation would continue for the foreseeable future;

 

 

 

 

 

(iii) Adopt Berkshire already had a surfeit of white British pre-approved prospective adopters;

 

 

 

 

 

(iv) priority would be given to white British adopters in the placement of these children as they shared the same background; and

 

 

 

 

 

(v) the chances of Adopt Berkshire placing a child with Mr and Mrs Mander were therefore remote.

 

 

 

5.Mr and Mrs Mander say that Ms Popat told them not to be discouraged from adopting entirely, as she saw no reason why they would not be good prospective adopters. She suggested they keep in touch with Adopt Berkshire and try again in a few years in case the situation had changed. She suggested they consider an international adoption from India.

 

 

 

Ms Popat and Adopt Berkshire deny that this was said to Mr and Mrs Mander.  This argument is somewhat shot in the foot, because when Mr and Mrs Mander asked Adopt Berkshire to provide written reasons for not progressing their application, Adopt Berkshire sent this:-

 

 

 

“In making this decision [not to progress you to application stage], we took into account a number of factors including:

 

 

 

 

 

◦the profile of children currently available for placement both locally and nationally;

 

 

 

 

 

◦the fact that in the 17 months since Adopt Berkshire was launched we have not had a single child of Indian or Pakistani heritage referred to us for placement;

 

 

 

 

 

◦the fact that we had recently made contact with a number of local authorities which have significant Indian and Pakistani communities and with several Voluntary Adoption Agencies and they all reported that they had a number of sets of Indian and Pakistani adopters approved and waiting placement but were experiencing a dearth of children requiring placement who would be appropriately culturally placed with these families;

 

 

 

 

 

◦the fact that there are currently many more approved and waiting adoptive families across the U.K who are hoping to achieve the placement of a child/ren of pre-school age than there are children for placement and that this therefore makes it unlikely that a child whose cultural heritage was significantly different to your own would be placed with you.”

 

 

 

7.After acknowledging that the local and national picture may change over time, Ms Loades continued:

 

 

 

 

 

 

 

 

 

 

 

“…it is hard at the current time to advise you how best to proceed regarding adopting within the U.K.; however another option that you may wish to explore is the option of adopting from India – while this is likely to be a lengthy process and may be financially stretching, it may ultimately be more likely to enable you to achieve the placement of a young child whose cultural heritage is similar to your own”.

 

 

 

If this is different to the alleged oral reasons given, it is in the hair-splitting territory. It is plain that the major (if not sole) reason for not progressing the application to a full assessment of suitability is based on race.  Note that Mr and Mrs Mander were NOT saying that they themselves only wanted to adopt a child of the same ethnicity.

 

Adopt Berkshire confirmed at the hearing that there was nothing in their discussions with Mr and Mrs Mander to suggest that they would not be suitable carers for children or suitable adopters

 

 

 

 

 

 

 

 

 

10.          The Defendants have at all times made clear that there was nothing in Adopt Berkshire’s dealings with Mr and Mrs Mander which suggested that they would not be suitable people to adopt or could not offer a loving and caring home to a child. The Defendants’ witnesses reiterated this in their written and oral evidence.

 

 

 

Mr and Mrs Mander, supported by the Equality and Human Rights Commission brought an action for direct discrimination on the grounds of race, and also a claim under articles 8, 12 and 14 of the Human Rights Act.

 

 

 

I’ll deal with the HRA aspect first, as that was quite straightforward and was dismissed.

 

 

 

 

 

108.        Mr and Mrs Mander submit that in this case the Defendants by their actions prohibited them from founding a family contrary to Article 12, which was breached in a manner that was not in accordance with the national law as it constituted direct discrimination on the grounds of race contrary to the EA. Further, they claim that because it constituted direct discrimination, it was in breach of Article 14 when read with Article 12.

 

 

 

 

 

 

 

109.        Mr and Mrs Mander have not satisfied me that the ambit of Article 12 encompasses the right to found a family by adoption of a child in all circumstances. X v Netherlands specifically holds that it does not, and that it is left to the national law to determine whether, or subject to what conditions, the exercise of the right in such a way should be permitted. Accordingly, to paraphrase Lord Nicholls at [26] of M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 WLR 637, [2006] HRLR 19 (cited at [65] of Wilkinson v Kitzinger) the Commission in X v Netherlands is saying that Contracting States are not currently required by the Convention to include within the right to found a family guaranteed by Article 12, the right to adopt a child. That is left to the national law. The manner in which the UK has determined rights relating to adoption is in the statutory framework that it has put in place by way of the 2002 Act, the Children Act, the AAR and the Statutory Guidance, and the remedies for discrimination in relation to the provision of adoption services are found in the EA. Accordingly I accept Miss Foster’s submission for the Defendants that there is no place in this case for a claim of breach of the HRA.

 

 

 

 

 

 

 

110.        For those reasons I dismiss this element of the claim.

 

 

 

In short, there is not a RIGHT to be able to adopt that is actionable under article 12.

 

 

 

Direct discrimination was, however, the central plank of the case.  Had Mr and Mrs Mander been treated (in the refusal of their wish to be assessed as adopters) in a way that they would not have been treated if they had been white, for example?   (It doesn’t seem too tricky to resolve that, but of course there was a lot of argument, because no adoption agency wants to be labelled as having racially discriminated against someone)

 

 

 

The Court found that the first stage of the claim was made out :-

 

 

 

 

 

79.          Mr and Mrs Mander case is that the Defendants directly discriminated against them by treating them less favourably than they treat or would treat others because of their race, and specifically:

 

 

 

 

 

 

 

 

 

i) From 26 April onwards, refusing to progress Mr and Mrs Mander’s application for approval as prospective adopters, and therefore refusing to permit them access to the adoption service provided by Adopt Berkshire, contrary to section 29(1) EA;

 

 

 

 

 

ii) By terminating the provision of the adoption service provided by Adopt Berkshire to Mr and Mrs Mander on 26 April 2016 contrary to section 29(2)(b) EA;

 

 

 

 

 

iii) By subjecting Mr and Mrs Mander to the following detriments contrary to section 29(2)(c) EA:

 

 

 

 

 

a) informing Mr and Mrs Mander by telephone on 31 March 2016 that they should not bother to apply to be approved to adopt because of their “Indian background”;

 

 

 

 

 

b) from 26 April 2016 refusing to progress their application for approval as potential adoptive parents and refusing to reconsider the reasons for the rejection of their application; and

 

 

 

c) suggesting in the letters of 4th May 2016 and 16 June 2016, that Mr and Mrs Mander should consider adopting from India.

 

 

 

 

 

Finding of prima facie case of direct discrimination

 

 

 

80.          In this case, I am satisfied on the evidence before me that Mr and Mrs Mander have made out a prima facie case of direct discrimination. The basis of the claim is well and contemporaneously documented. There is either no dispute that the acts complained of took place (refusing to progress Mr and Mrs Mander’s interest in adoption, refusing to reconsider their application, suggesting they adopt from India), or Mr and Mrs Mander’s account is not challenged and I have accepted it (informing them by telephone that they should not bother to apply to be approved to adopt because of their Indian background). There can be no real dispute that both contemporaneous notes and the reasons given in writing afterwards by Ms Loades and Ms Redding, being employees of Adopt Berkshire and RBWM respectively, cited Mr and Mrs Mander’s ethnicity as a relevant consideration. The defence is really on the basis of an adequate explanation for differential treatment, which the authorities make clear that I do not consider at the stage of determining whether a prima facie case is made out. Accordingly, I must find that there is direct discrimination unless the Defendants can satisfy me on the balance of probabilities that they did not discriminate against Mr and Mrs Mander.

 

 

 

Having established that there is a prima facie case of direct discrimination, the Court then have to look at what Adopt Berkshire say as to why there WAS NOT discrimination in fact.

 

 

 

Note that intention to discriminate doesn’t come into it. 

 

I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

Lady Hale in JFS put the criteria/motive question this way in [62] of her judgment:

 

 

 

 

 

“[62] … there are in truth two different sorts of “why” question, one relevant and one irrelevant. The irrelevant one is the discriminator’s motive, intention, reason or purpose. The relevant one is what caused him to act as he did. In some cases this is absolutely plain. The facts are not in dispute. The girls in the Birmingham case [1989] AC 1155 were denied grammar school places, when the boys with the same marks got them, simply because they were girls. The husband in the James case [1990] 2 AC 751 was charged admission to the pool, when his wife was not, simply because he was a man. This is what Lord Goff was referring to as “the application of a gender-based criterion”.

 

 

 

 

 

 

 

[63] But, as Lord Goff pointed out, there are also cases where a choice has been made because of the applicant’s sex or race. As Lord Nicholls put it in the Nagarajan case [2000] 1 AC 501, 510 – 511:

 

 

 

 

 

 

 

 

 

“In every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.”

 

Adopt Berkshire’s case was that Mr and Mrs Mander were rejected because the social worker and Agency were looking at the merits of assessing someone for whom they thought the eventual end point would not be likely to result in a match of a child being placed with them for adoption.  (I see the point, but common sense still seems to say to me that the only reason the Agency had thought that was because of their race…)

 

 

 

 

 

 

 

 

 

 

 

84.          What were the factual criteria that Ms Loades applied in rejecting Mr and Mrs Mander from proceeding to ROI? Ms Loades agreed in cross- examination that she selected potential adopters to progress at the IVR Meetings who she felt were mostly likely to succeed to placement. This was also the evidence of Ms Popat, it is reflected in Ms Loades letter of 4 May and Ms Redding’s letters of 14 June and 18 August 2016. I remind myself that was summarised in Ms Redding’s 18 August 2016 letter as follows: “Given the current position regarding the availability of children for adoption within the UK, Mrs and Mrs [sic] Mander are, for the reasons outlined in my previous letter, unlikely at this time to be able to achieve the placement of a child of Indian, Pakistani or mixed heritage. In addition there is currently a significant surplus of already approved White British/European adopters within the UK who are seeking placement of a child aged under four years. Therefore it is also highly unlikely that Mr & Mrs Mander would be able to achieve the placement of such a child however open they are to considering this placement option”. Most importantly, it is also the Defendants’ pleaded case. They plead that they decided not to progress Mr and Mrs Mander’s expression of interest in being approved to adopt any further, because it was adjudged that there was insufficient likelihood at that time that a child or children would be matched and subsequently placed with them for adoption within a reasonable timescale, and in reaching this decision, they took into account the profile of children who required placement.

 

85. Miss Foster in her skeleton and closing submissions has sought to widen the Defendants’ pleaded case.

 

 

 

 

 

 

 

86.          Firstly, she submits for the Defendants that targeted recruitment is condoned in the Statutory Guidance (at paragraph 3.6 of Chapter 3) as a legitimate method by which to recruit potential adopters who can meet the needs of waiting children and, in particular, the needs of harder to place children. I agree. However, in my judgment that guidance is about encouraging applications from a wider pool of prospective adopters and increasing the number of available adopters from particular communities, not about turning away applications on a summary basis, outwith the published processes, from prospective adopters who meet the eligibility criteria but who Adopt Berkshire consider on an Initial Visit do not, or might not, meet further unspecified and unpublished criteria.

 

 

 

 

 

 

 

87.          Secondly, she submits that whether a prospective adopter can meet the needs of harder to place children lies within the discretion of experienced social workers, such as Ms Popat and Ms Loades. Although Mr and Mrs Mander say that they were willing to take sibling groups and look outside their own ethnicity, Miss Foster submits that it is for Ms Popat and Ms Loades as experienced social workers to interpret that and “filter it through the lens of their professional judgment” to decide as a matter of judgment and discretion whether they fitted within the Defendant’s criteria.

 

 

 

Her Honour Judge Clarke rejected this.

 

88.          I do not accept this submission. It is clear from the statutory framework and the AB Guidance that whether or not Mr and Mrs Mander were suitable to be approved as prospective adopters should be a matter for information gathering at the post-ROI pre-assessment Stage 1, and for assessment by an Adoption Panel at Stage 2. Whether Mr and Mrs Mander could meet the needs of harder to place children should be a matter for assessment only after an Adoption Panel has approved them, at the matching stage. Ms Loades in cross-examination accepted that:

 

 

 

 

 

 

 

 

 

i) part of the next stage of the process, once an ROI form was filed, was to work with potential adopters to see if they were willing to broaden the scope of the children that they might consider adopting, whether that was in terms of age, or higher needs, or differing ethnicities, or taking sibling groups;

 

 

 

 

 

ii) the ROI application form was much lengthier and contained much more in-depth and detailed information than would have been gleaned by a social worker at the Initial Visit.

 

 

 

89.          Accordingly, although the motive for the decision-making may have been to try and put forward prospective adopters who Ms Loades and her team considered would provide a good match for children waiting for adoption, I do not accept that the ability to meet harder to place children was a factual criterion at this stage, as Adopt Berkshire did not have the information properly to assess it. I remind myself that the motives of discriminators are irrelevant, per R v Birmingham and JFS.

 

 

 

…I am satisfied that the factual criterion which was given overwhelming priority in that decision, and the later decision not to reconsider that decision at the round-table meeting, was Mr and Mrs Mander’s ethnicity.

 

 

 

 

 

 

 

 

 

99.          The ‘crucial question’, as Lady Hale put it in JFS, is whether Mr and Mrs Mander received less favourable treatment by being (i) refused to progress to ROI; (ii) terminated from the prospective adopters approval process (and so the adoption service of Adopt Berkshire); and (iii) subjected to the pleaded detriments; on the grounds of race, or for some other reason. The Defendants have not satisfied me to the civil standard that Mr and Mrs Mander received this less favourable treatment for some other reason and so they have not displaced the presumption of direct discrimination arising from Mr and Mrs Mander’s prima facie case.

 

 

 

 

 

 

 

100.        For those reasons I find that the Defendants directly discriminated against Mr and Mrs Mander on the grounds of race, as pleaded.

 

 

 

Damages were set at £60,000.

 

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conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)

Posted on December 17, 2013 by suesspiciousminds

 

The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue.  In the care proceedings, the Judge was weighing up the needs of the children and reached the conclusion that adoption was in their best interests IF and only IF, the adopters that the LA would find in the future would meet a series of conditions. The Judge then reserved the case to herself for any future applications and made a Placement Order with a series of conditions – if the conditions weren’t met, the placement order couldn’t be exercised.

“2. The court has accepted the list of attributes of prospective adopters for M and K recommended by the court appointed expert psychologist, Mrs Buxton, that as a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be:

a) two in number;

b) energetic;

c) free from attachment difficulties of their own;

d) experienced carers;

e) fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular;

f) there must be no other children within the home

g) ready, willing and able to promote direct face to face contact with their brothers, B, B and L preferably four times per year but at least a minimum of twice per year.

3. The court was satisfied on the basis of all the evidence before it and on its analysis of the welfare checklist issues that adoption of M and K was proportionate and the most appropriate care plan to promote and safeguard their welfare, save that the care plans are approved and placement orders granted on the basis that the list of attributes set out above is adhered to by the local authority.”

The LA appealed that, on the basis that this was law out of thin air (no such thing as conditional placement orders) and that this was in complete breach of the separation that Parliament had set up between Courts (decide the facts, make the decision about applications and orders) and LA’s (deliver the orders on the ground and make day to day decisions)

The Court of Appeal having forgotten / ignored that principle entirely in Neath Port Talbot, found it again down the back of the sofa.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1611.html

    1. All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

 

    1. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

 

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority‘ [emphasis added].

The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.

    1. When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

 

a) vary or revoke the placement order [ACA 2002, ss 23 and 24];

b) make orders for contact [ACA 2002, s 26].

The position is as described by Wilson LJ in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 (set out at para 20 above); the only opportunity that a family court has to consider the merits of a particular person to adopt a child who is the subject of a placement for adoption order occurs when that person applies for an adoption order.

    1. In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

 

    1. The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

 

a) the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

b) the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

c) in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

d) recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

    1. The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

 

    1. The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

 

  1. In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

 

Hooray say the local authority, wiping their collective brows with a polka dot handkerchief.

But stop, mother had anticipated this, and cross-appealed on the basis that if the conditions didn’t stand, the Placement Orders should be set aside – the “nothing else will do” test not having been met

 

2. The Cross Appeal: ‘What is a judge to do?’

    1. On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

 

    1. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

 

‘The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ [emphasis added]

    1. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

 

    1. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

 

    1. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

 

    1. I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

 

  1. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

 

So, although the LA won on the principle that conditions couldn’t be attached to a Placement Order, it was the most pyhrric of victories, since that persuaded the Court to nuke the Placement Order.

 

Look at that last sentence – it is a masterpiece of understatement.

 

At the moment, we have a national crisis of adopters – far more children need places than there are places for them. Do you honestly think that anyone who is approved as an adopter, who are in high demand and sought after by multiple local authorities for multiple children, are going to commit to a process of matching with children WHEN THE CHILDREN may not be approved for adoption? No way.

Assuming that you get someone nuts enough to do that, what would the process actually involve?

1. The LA revives their application for a Placement Order

2. The mother, the father, the Guardian and Judge all say – we need to see as much detail as possible about the adopters

3. Every inch of that information is pored over, critiqued, nit-picked looking for flaws.

4. If there has been  passage of time in the search, one of the parents will revive their desire to be reconsidered or to put forward a family member

5. The parents may not get public funding (stand-alone Placement Orders aren’t non-means, non-merits public funding, you are at the whim of the Legal Aid Agency)

6. In order to get the Placement Order, the Court will want to be satisfied that these carers ticked all of their criteria

 

All of this being before the child can be placed with the carers identified. How is that sitting with no delay?

 

 

How is this not moving the assessment of adopters and the matching of children with adopters away from qualified professionals and into the Court? How does this square even for a second with the view in the Children and Families Bill on Courts backing the heck out of care planning?  (I know, the Bill isn’t law, but that hasn’t stopped us wholesale adopting the 26 week proposal and ramming that through – why is the other major limb, care planning being firmly back with LAs being utterly ignored?)

I have no problem with the Courts having jurisdiction over this stuff, if Parliament debates it and gives it to them, but not like this. An important decision for any family practitioner – it is another tool in the argument toolkit for fighting a Placement Order, and another obstacle for LA’s.

 

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