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Local Authority lawyers should grow a pair

This post contains 95 per cent of your Recommended Daily Allowance of Sarcasm and 119% of your Recommended Daily Allowance of Dopiness

 

Well, it isn’t quite put like that, but it isn’t far off.   I appreciate that for a substantial amount of my compatriots, it isn’t even biologically possible.

 

You see, it turns out that the adoption statistics are our fault.  We all knew that there was about to be a blame game  (heaven forbid that anyone should even consider whether the direction of travel might be a good thing, or a bad thing or a neutral thing before embarking on the blame exercise), but it turns out that the finger points at Local Authority lawyers, who, as I say, are going to be told to ‘grow a pair’

[Even though I speculated today that the next judicial edict would be that the LA final evidence must be written in iambic pentameter and rather than being typed, the social worker would have to sew it using cross-stitch, this rather surprised me.  “It turns out that the Bayeux Tapestry was really just contact notes”… I fully anticipate that Dallas PD will be questioning all Local Authority lawyers about JFK shortly]

 

Martin Narey, Adoption Czar  (or is it Tsar? I can never remember, but it always does remind me that the career trajectory of Czars and Tsars, both in historical leader sense and in political oversight sense hasn’t been that stellar) has given a speech at the Association of Directors of Children’s Services.

 

He is thus talking to the uber-bosses of all social workers, the capo del tutti capi of social workers.

Whilst I’m not the largest flag-waving champion of Mr Narey, and I’m unlikely to ever make his Christmas card list, I will give credit where it is due. He has put that speech up online, so that people can read it. He didn’t HAVE to do that, so good on him for doing it.

Flag is going back in the cupboard now.

 

It isn’t really surprising that he opens with a discussion about the adoption statistics. To be fair (oh, flag coming back out), if you’re the Adoption Czar and there’s a big political drive to get adoption numbers up, then when they absolutely tank, you’re BOUND to want to do something about that. If you don’t, then you’re sort of redundant. Probably literally as well as figuratively.

 

Mr Narey refers to the drop being a result of two major Court decisions, Re B and Re B-S, and reminds us all that he helped to produce a Myth-Busting document that picked up a lance and slew the dragon of misconception, so these adoption figures should recover, thanks to his intervention.

 

He talks about the number of ADM decisions for Placement Orders to be sought going down 52% last year, and he says this    (If I’m crabby here, it is only PARTLY because I can’t cut and paste from his slides and have had to type the whole thing out. Only PARTLY)

 

“But these are not as a result of the Courts rejecting Placement Order applications in vast numbers. The drop is overwhelmingly explained by a drop in Local Authority Placement Order applications. They have dropped from 1,830 to 910, a decrease of almost exactly half.

 

Unless you believe that all those adoption decisions you made last year were not in the interests of those children, I urge you to ensure that your social workers and lawyers have not lost their nerve, and the President’s exhortation that you must follow adoption when that is in the child’s best interests is followed. If current figures do not recover, then over time, we shall see adoption numbers drop back very substantially indeed.

 

I don’t think adoption can ever be suitable for other than a minority of children in care. But I think that minority is probably more than 5,000 or just 7% of the care population”

 

Well, where to start?

As an argument “Unless you believe that all those adoption decisions you made last year were not in the interests of those children”  so get out and make some more – ideally 50% more , leaves a lot to be desired. Firstly, it is an emotive appeal. Secondly, saying ‘If you think all those cases where you recommended adoption, you were right’ inexorably leads to   ‘a lot of the ones where you didn’t, you must be wrong’ is some strange use of logic that I’m not familiar with.  Of course ADMs who make a decision that adoption is the right plan for a child do so believing that this is in the best interests of the child. But why on earth should that mean that they were wrong with those that they rejected?

That’s like saying  “remember all those times you bet on Red in the casino and you won? Well, forget about the times that you bet on Red and lost, or you bet on Black and won, clearly betting on Red is the right approach. Go heavily into Red. “

Next, if you think that Local Authority lawyers have lost their nerve, then you need to get out in the trenches with us. There has NEVER been a harder time to be a Local Authority lawyer.  I don’t say this to garner sympathy (I know that many of my readers think that lawyers, and LA lawyers in particular, are the devil incarnate – they are wrong, it is just me), but it is the truth.  It is breathtakingly offensive to say that we have lost our nerve.

Nor have social workers.

 

Perhaps the Adoption Tsar doesn’t know that actually, a lawyers’ job is to give advice but take instructions. We don’t EVER say to a social worker that they can’t put forward a plan of adoption or ask the Agency Decision Maker to approve that plan. We tell them whether or not such a plan is likely to succeed in Court, and we tell them what the strong and weak points of their case is, and we give them advice on what they can do to improve the weak points and how to present their evidence in the way that the Courts now require.

What we do not do, is advise the ADM  “you should approve adoption here”  or “this isn’t an adoption case”.  Even back in the days of Adoption Panel, where a lawyer sat in the same room as the Panel when they made the decision about whether it was an adoption case or not, we didn’t get to make any representations about it or to vote.  Our role was, and still is, limited to giving advice on any legal issues that arise, not to advise the ADM on the merits or otherwise of the case.

 

Mr Narey’s argument here is presumably, theat if Local Authorities had asked the Court to make 1,830 Placement Orders after Re B-S, the Court would have made them.   (And perhaps if we’d asked for 4,000, the Court would have made them too).

 

The reason the adoption statistics dropped was because we were stupid and didn’t understand Myth-Busting !  (TM)  or because we were too timid to ask the question – social workers and Local Authority lawyers have been metaphorically teenagers who want to ask someone out but end up not being able to get a word out when we are near the subject of our affections. What Mr Narey is saying to us is “Hey, that person you like is TOTALLY into you, and they would TOTALLY say yes if you asked them to go to the pictures with you”

It is of course telling that with that 52% drop in applications for Placement Orders, I have not heard of a SINGLE case where a Judge seized of all of the facts and evidence, said to the Local Authority “I cannot believe that you are putting forward a plan that doesn’t involve adoption here, I really think that you should reconsider”  , or given judgments that say “none of the options put forward for this child are sufficient to safeguard their well-being, and I adjourn the final hearing so that matters can be reconsidered”

 

 

I think that it is interesting that whilst this speech makes great play of the President’s decision in Re R, and even quotes from it approvingly, it misses out two really major elements of Re R.

 

The first is this one:-

 

in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B, paras 198, 215.’

 

[And to save you flipping back to Re B, that, precisely, is THIS

 

para 198: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.” 

para [215]:

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

 

If a Judge makes a Placement Order without engaging with that test, the judgment will be deficient. If a Local Authority present their case without striving to meet that test, their evidence will be deficient.

The Court of Appeal in Re R also made it plain that all of the stipulations laid down in Re B-S about the quality of the evidence, the need for robust and rigorous child-specific analysis of all of the realistic options and the Court not proceeding in a linear manner still stand.

 

The second omission is of course,

On 11 November 2014 the National Adoption Leadership Board published Impact of Court Judgments on Adoption: What the judgments do and do not say, popularly referred to as the Re B-S myth-buster. This document appears to be directed primarily at social workers and, appropriately, not to the judges. It has been the subject of some discussion in family justice circles. I need to make clear that its content has not been endorsed by the judiciary.

 

I have set out before, here, what the Court do and do not say in Re R     http://www.familylaw.co.uk/news_and_comment/view-from-the-foot-of-the-tower-two-steps-forward-two-steps-back

 

As I said in that piece, the ‘myths and misconceptions’ that the Court of Appeal were slaying were the ones that nobody actually believed were right – even the lawyers advancing those claims that “Re B-S means that if the positives and negatives aren’t set out in tabular form, adoption must be rejected” didn’t actually believe what they were saying.  (It’s one of the advantages of being a lawyer, you don’t have to believe what you are saying in order to say it…)

 

Mr Narey is quite right that the Court of Appeal are clear that where the only option that will meet a child’s needs is adoption, that’s the order that should be sought, and the Court will adjudicate on it. If the social worker thinks that of all of the realistic options, adoption is the only one that can meet the child’s needs, then they can and should go to the ADM to seek approval of that plan. And likewise, if the ADM thinks that, then they can and should approve the plan. And likewise, if the Court conclude that, they can and should make the adoption order.

 

That is encapsulated by this passage

‘[44] … Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.’

 

If a social worker, or an ADM think that this test is made out, then there’s no reason at all why they shouldn’t put forward a plan of adoption. It might be that when the evidence that lead them to think that is tested in the burning crucible of cross-examination, it is found wanting, but that’s how litigation works.

 

I can’t help but note that Mr Narey in his speech quotes a section of the President’s judgment from Re R  [what he doesn’t do is quote all of the bits in italics are a key part, which rather change the meaning if you ENTIRELY miss them out]

 

It is apparent, and not merely from what Miss James and Miss Johnson have told us, that there is widespread uncertainty, misunderstanding and confusion, which we urgently need to address.

[41] There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’, that ‘adoption is a thing of the past.’ There is a feeling that ‘adoption is a last resort’ and ‘nothing else will do’ have become slogans too often taken to extremes, so that there is now “a shying away from permanency if at all possible” and a ‘bending over backwards’ to keep the child in the family if at all possible. There is concern that the fact that ours is one of the few countries in Europe which permits adoption notwithstanding parental objection is adding to the uncertainty as to whether adoption can still be put forward as the right and best outcome for a child.

[42] There is concern that Re B-S is being used as an opportunity to criticise local authorities and social workers inappropriately – there is a feeling that “arguments have become somewhat pedantic over ‘B-S compliance’” – and as an argument in favour of ordering additional and unnecessary evidence and assessments. It is suggested that the number of assessments directed in accordance with section 38(6) of the Children Act 1989 is on the increase. It is said that when social worker assessments of possible family carers are negative, further assessments are increasingly being directed: “To discount a kinship carer, it seems that two negative assessments are required.” There is a sense that the threshold for consideration of family and friends as possible carers has been downgraded and is now “worryingly low”. Mention is made of a case where the child’s solicitor complained that the Re B-S analysis, although set out in the evidence, was not presented in a tabular format.

[43] We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice ‘on the ground’, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest.

[44] I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

 

I appreciate, space is at a premium and when you’re giving a speech you don’t necessarily want to quote great chunks of a judgment, but when you quote as selectively as this, you are turning a passage in a judgment that is saying that where really ridiculous arguments about Re B-S are being used, those are fallacies into something which suggests that Re B-S says nothing of any consequence at all.  It is just plain misleading.

 

Ignore for a moment the “nothing else will do” formulation (although, as outlined above, it is still good law, just not in the ludicrously over-literal way that the Court of Appeal were initially using it).  These are the other changes in child protection law and adoption law since Re B.

 

1. The test for an appeal Court is now whether the Judge was  “wrong” and not whether the Judge was “plainly wrong”.  That is a substantial change, and makes the risk of being appealed in a judgment notably higher.

2. The Court can no longer proceed on a linear analysis.  They MUST look at the pros and cons of each option. This is not a small thing. Prior to this decision, the process was always “look at parent, if no, then look at family member, if no then adoption is all that is left, ergo the ‘last resort’ element is satisfied, it is the last resort because there isn’t anything left”.   If a Local Authority are making a case for adoption, they have to not only show the flaws in the other options, but that the benefits of adoption outweigh the FLAWS in adoption. That requires social workers to fully engage and grapple with the benefits AND flaws of adoption both in general and for a particular child.  If the Adoption Leadership Board want to tackle a single issue, rather than Jedi-hand-waving that ‘this law hasn’t changed, you may go about your business’, training that better equips social workers to do this and proper impartial and evidence-based research about those benefits and flaws would be a damn good start.

3. The rigorous analysis and evidence required as a result in Re B-S is still required.

Let’s look specifically at the example of social work analysis on why adoption was right for a child that the Court of Appeal tore to bits in Re B-S

“a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]’s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she receives a high standard of care until she reaches adulthood

Adoption will give [S] the security and permanency that she requires. The identified carers are experienced carers and have good knowledge about children and the specific needs of children that have been removed from their families …”

 

Prior to 2013, that wasn’t only the sort of thing that you’d see in a social work statement explaining why adoption was the right outcome for a child, it was actually one of the better ones. Prior to 2013, I’d have put that in the top 10% of attempts in a social work statement to explain the benefits of adoption.  This was an A minus attempt.

Let’s look at what the Court of Appeal said

With respect to the social worker … that without more is not a sufficient rationale for a step as significant as permanent removal from the birth family for adoption. The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available. Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available. Good practice would have been to have heard evidence about the benefits and detriments of each of the permanent placement options that were available for S within and outside the family.

 

. Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

40. This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

 

I’ll say it again, because this is important. A formulation that I would have put in the top 10% of analysis that I’d been seeing pre 2013 was DESTROYED by the Court of Appeal as being completely inadequate.  An A minus attempt was given an E.   Whether or not Re B-S changed any legal tests, it certainly raised the bar massively for the standard of evidence and analysis required.

 

4. The test for leave to oppose adoption was dramatically reduced.  Prior to Re B-S, such applications were rare and also very easy to shut down. All you needed was to quote Thorpe LJ in Re W  “However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.”  and draw the Court’s attention to the facts of Re P, where parents who had gone on to have another child and keep that child, with no statutory order, hadn’t been sufficient to get them leave to oppose.   Now, the test is substantially reduced.   In particular, these two elements from Re B-S.

 

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

 

and

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.

 

5.  As we have seen, more leave to oppose applications are being made, and more have been granted.  We also see that the Courts have given judgments in cases where adoption applications have been successfully opposed. To date, the reported cases are where a parent has been able to show that another family member could care for the child instead of prospective adopters who have had the child for 13-18 months.  Such a decision would have been unthinkable in 2012, but they are happening now.  What that means is that if a Court is being invited to make a Placement Order, and the LA are inviting the Court to do so, they have to have good, cogent evidence as to why family members are not suitable instead.  If they don’t get that exercise right first time round, then the child will pay the price when at an adoption hearing 15 months later, the Court may be removing the child from adopters and placing with those family members.

 

 

All of those things, and Lady Hale’s formulation are real things.  It does nobody any favours to ‘jedi-hand-wave’ them out of existence, particularly by chopping up a quote from a judgment so that a person reading it would think that the Court of Appeal had said:-

There appears to be an impression in some quarters that an adoption application now has to surmount ‘a much higher hurdle’, or even that ‘adoption is over’… those impressions are based on myths and misconceptions  

 

when those three little dots are missing out all of the actual substance.

 

Parliament has created a statutory power of adoption. The tests have been laid down in the Act. The Courts have interpreted how those tests are to be delivered in practice.  The Lady Hale formulation in Re B is the test that the Courts will be working towards. To pretend otherwise is misleading.

It does remain the case that where a Local Authority can show that none of the other options before the Court can meet the child’s needs, adoption is an option that they can legitimately pursue.

 

It’s disengenous to pretend that people didn’t understand that.  If social workers and lawyers and ADMs hadn’t grasped that, then there would have been NO applications for Placement Orders.  The numbers went down because the difficulty in obtaining a Placement Order from the Court went up.

 

 

If the social workers, lawyers and ADMs had ‘held their nerve’ in 2013 and made the same number of Placement Order applications, then the Court would have rejected them in huge numbers.  Maybe they all should have done, and let it become the Court’s problem.

Two years later, the same might not still be the case.  Firstly, the over-literal over-prescriptive appeals seem to have died down a bit. Secondly, social workers have got more used to the rigorous standards that are required in terms of their evidence and are better equipped to present their evidence to those standards.

 

 

 

 

 

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

 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:-

http://media.education.gov.uk/assets/files/pdf/s/placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

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

http://media.education.gov.uk/assets/files/pdf/r/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…