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Court of Appeal criticise Judge for insufficient analysis of the placement options

 

In re P (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/3.html

The Court of Appeal conclude that a Judge who made a Placement Order (thus authorising a child to be placed for adoption) had not conducted a sufficiently robust analysis of the relative merits of the placement options before making that decision.  The Judge had set out in the judgment what he was required to do, but the Court of Appeal say that he didn’t actually do it.

That’s been an issue I’ve been concerned about for quite a while – I read all of the published judgments, and it seems to me that the complaints that the Court of Appeal made in Re B-S about ‘adoption is the last resort’ being a stock phrase of judicial window-dressing, a remark to be thrown into a judgment but with no real engagement with the principle and philosophy has just been replaced by Judges inserting into their judgments huge swathes of case-law that tell them what they must do and what they must consider (including huge swathes of Re B-S) but there’s not often evidence when I read these judgments of the Judge going on to actually apply these principles. It seems to be considered sufficient for the Judge to simply tell everyone that they know the relevant portions of the caselaw rather than actually following those stipulations.

So in part, I’m rather glad of this case. It puts down that marker.

  1. While ostensibly aware of the need to adopt a ‘holistic’ approach to the evaluation of the options for P (and the guidance offered by Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46]), we are not convinced that Judge Ansell delivered on his intentions. It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach) [2014] (above)) “essential” that a judge provides an adequately reasoned judgment at the conclusion of a case such as this. We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), or a proportionality evaluation. In this respect, Mr. Horrocks makes good his submission.
  2. There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an ‘old-fashioned welfare balancing exercise’ (Re F [2015] EWCA Civ 882 at [48]); the term ‘holistic’ does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a ‘balance sheet’ of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile. What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.
  3. In this case, as in Re R (A Child) (Adoption: Judicial Approach) [2014], Judge Ansell was faced with an essentially binary decision; either P was restored to her mother’s care, or she was adopted. There was no realistic alternative. The fact that the judge considered the merits of the mother’s position, properly evaluating, we are satisfied, her strengths and weaknesses, but ruling her out as a long-term carer for P before moving on to consider the other option of adoption is ‘linear’ thinking, both in form and substance (see Re R [18]).
  4. There was sufficient evidence before Judge Ansell for him to conclude that the mother was indeed a realistic option as a long-term carer for P (giving ‘realistic’ its ordinary English meaning: Re Y (Children) [2014] EWCA Civ 1553). After all, her aspirations to care for P throughout her childhood had attracted some support during the proceedings from both the Family Centre and (until after the hearing had started) P’s Guardian. There were many positives of her parenting, as the Judge himself recognised. This was not one of those rare cases identified in North Yorkshire County Council v B [2008] 1 FLR 1645, and discussed by Sir James Munby P in Re R at [67], in which it would have been permissible for a court, albeit acting cautiously, to rule out a parent as a potential option (even in some cases before the final hearing itself) before going on to consider other options. By his judgment (both in substance and structure), Judge Ansell gives the impression that this is precisely what he did.
  5. That said, the judge conducted a sufficiently sound analysis of the pros and cons of the mother’s potential as a long-term carer of P; he was, after all, entitled to rely on the fact that the expert and professional evidence in this case all pointed against rehabilitation of P with her mother – namely, the final evidence from the Family Centre, the social worker’s assessments and the final recommendations of Mr. Abrahams. At least two of the professional witnesses (one of the social workers and the Children’s Guardian) had known the mother from the earlier proceedings, and were able to bring to this case long-standing knowledge of her care and parental capabilities. Indeed, it is significant to us that the experienced Guardian, who had represented P’s older half-siblings in the 2012/2013 proceedings, had initially supported the mother in her endeavour to care for P, but in the final analysis, had found himself unable to do so, having heard the same compelling oral evidence as the judge. Mr. Abrahams had concluded that P would not be safe in the care of the mother, a view on which the Judge was entitled to, and did, place significant reliance.
  6. However, that was only part of the required holistic evaluation. The Judge then needed to go on to consider the issue of adoption, and place that option up against the case for parental long-term care.(6) The outcome of adoption:
  7. As indicated in the previous section, having conducted a fair review of the mother’s strengths and weaknesses, and considered her potential as a long-term carer for P, the judge should, in our judgment, have gone on to conduct an internal analysis of the pros and cons of adoption, and then place that analysis up against his conclusions on the mother. In failing to do this, Mr. Horrocks has made good his complaint under this ground of appeal.

 

However, the Court of Appeal in this case go on to say that there is sufficient material before them for THEM to go on to conduct that analysis themselves, rather than send the case back for re-hearing. That’s an approach that is legally and properly available to them and they direct themselves to the relevant caselaw.

My querying eyebrow is that the Court of Appeal therefore consider that THIS is sufficient as an analysis of placement options, as it is the one that they themselves provide and rely upon

 

  1. In reaching a view about this, we have considered carefully the evidence from the senior social worker in the adoption team, the final statement of the key social worker, the Family Centre reports, the Placement Order report, the mother’s written evidence and the Guardian’s reports, all of which (save that from the mother) was evidence accepted by the judge. We consider that we have sufficient evidence to undertake the analysis ourselves.
  2. P is an eighteen-month old infant; she is in good health, though has sickle cell traits. She has the ordinary needs for “predictable, reliable, consistent” parenting from a parent who is “available, responsive and sensitive” (per Placement Order report). She has, in the judge’s finding, a warm relationship with her mother. We acknowledge, as indeed the social workers acknowledge, that if P were to express her feelings, she would almost certainly wish to be cared for by her mother, assisted by her father, provided this was in her best interests. This would reflect well her dual-heritage ethnicity, and would most completely respect her rights to family life; she would probably be able to establish a modest relationship with five of her six half-siblings, through her mother’s periodic contact with them.
  3. By contrast, adoption will sever all legal and emotional ties with the mother and she will, in all probability, lose any contact with her half-siblings; it is thought that any ongoing direct family contact could potentially destabilise any placement. P will nonetheless be claimed as a child in a new family. It is not envisaged that there will be difficulty in finding a suitable placement for P for adoption, and it is believed that this could be done within 3-6 months of a final placement order. The “strict” test for severing the relationship between parent and child by way of adoption is now clearly defined; it will be satisfied only in “exceptional circumstances” and:

    “where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do” Baroness Hale Re B [198].

  4. We have much in mind that the court’s paramount consideration, in accordance with section 1(2) of the ACA 2002, is P’s welfare “throughout [her] life.” We are of course acutely conscious of the effect on P of ceasing to be a member of her family. But having considered the case carefully, and having placed the options alongside each other, we share the judge’s view, essentially for the reasons he gave, that P’s best interests would not be protected, let alone enhanced, in the care of her mother. We are persuaded that adoption was indeed the only outcome which would meet P’s long term emotional and physical needs; it was, in the final analysis, the only realistic option. The judge was therefore entitled to conclude, albeit he expressed it with incautious brevity, that the mother’s consent to adoption was “required”.
  5. Notwithstanding the exceptionality of this outcome, and while acknowledging that the judgment is light on analysis of the competing options, and far from ‘holistic’ as McFarlane LJ used the term in Re G, the outcome was in our view sufficiently clear that we feel able to substitute our own conclusion.

 

 

It seems rather superficial and sketchy to me – it seems rather like the sort of analysis that the Court of Appeal railed against in Re B-S and all of those other cases. But now, rather than simply carping about what is deficient, we have a concrete example of what the Court of Appeal have ruled is SUFFICIENT.   And it seems, to use vernacular, a bit weaksauce.

If I got that as the social worker’s analysis of placement options, I’d have been sending it back to ask for substantial improvements. I would have been telling them that it doesn’t comply with the guidelines laid down by Re B-S. It seems exactly the sort of analysis that the Court of Appeal described as being anodyne and inadequate. It is barely longer than the example that the Court of Appeal skewered in Re B-S.

And therefore, I am puzzled.

 

The Court of Appeal did express some sympathy for the Judge in the case

In focus in this appeal is a judgment which gives every appearance of being prepared under pressure of time, in a busy court, following directly from submissions at the conclusion of a five-day contested hearing. The result is, as all parties in this appeal have acknowledged to a greater or lesser extent, not altogether satisfactory – a matter of concern to us given that we have concluded that the judge was right for the additional reasons we shall describe; the outcome could not be more momentous for this mother and this child. The appeal represents an example of an all too common occurrence, namely the difficulty of finding time in a busy list adequately to explain a decision based on a series of multi factorial elements. The inevitable temptation for a judge who is seeking to be compassionate and also not to interfere with the other business of the court, is to try and do too much in the time available, when it would be better to take additional time.

 

The judgment was 30 pages long, so not exactly a half-assed rush job. What emerges from the Court of Appeal judgment was the sense that by the time the Judge reached the meat of the case, the real area where the judgment needs to shine – the analysis of placement options and reasons for conclusions, it had rather run out of steam.

 

The judgment finally accelerates to a rather abrupt discussion of the orders; in a concise concluding section the judge expressed the hope that he had “sufficiently analysed the options in this case”; he indicated that, “whether it be a holistic or linear approach”, he rejected the contention that either of these parents could safely protect P. He regarded himself as “driven to the only conclusion” that could be reached, namely a “care order in the welfare of the child must be made”. Without discussing the care plan as such, he reflected that a care order would “involve” a placement order and that required him “to dispense with the parental consent if the welfare of the child requires that consent to be dispensed with”. Without further reflection, he made those orders “in the interests of this child.”

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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.

 

 

 

 

 

The Adoption statistics

The Government have published their statistics (there’s a time delay, so these are the stats up to Autumn 2014)

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/436613/ALB_Business_Intelligence_Quarter_3_2014_to_2015.pdf

 

I suspect that the headline one  (which prompted all of those press releases in late April) is going to be this:-

 

 

Quarterly data suggests that the number of new decisions has continued to fall from 1,830 in quarter 2 2013-14 to 910 in quarter 3 2014-15, a decrease of 50%. The number of new placement orders have also continued to fall from 1,550 in quarter 2 2013-14 to 740 in quarter 3 2014-15, a decrease of 52%.

 

 

What they don’t have, is a measure of how many cases LA’s put before an Agency Decision Maker, so we can’t tell whether

 

  • Social workers were asking ADM’s for adoption approval less often, so less cases were approved
  • ADM’s were refusing a higher proportion of requests than previously, so less cases were approved
  • A combination of those factors  (which if so, would lead to even more of a drop – if social workers were only giving their ‘best’ cases for adoption to the ADM, but they were being knocked back, then you’d expect less and less cases to go to the ADM)

 

[And of course, what underpins all of that is whether social workers / ADMs were being overly cautious about the case law and not asking for adoption in cases where the Court would actually have made Placement Orders, or whether they were being realistic and knowing that if they asked for adoption they wouldn’t be capable of satisfying their Court that the tests were met]

 

 

What really fits is the increase stats on Special Guardianship Orders  – I haven’t seen the raw data, but the BBC claim this has tripled since 2012 (BS cough cough)

http://www.bbc.co.uk/news/uk-32840224

 

When you look at the graph showing Agency Decision Maker decisions that adoption should be the plan for the child over time, you can see the numbers drop off a cliff at the time of the Supreme Court decision in Re B (nothing else will do).

 

You can argue (and it is a legitimate argument, where Re B and Re B-S were a new test, or a nudge in the ribs to apply the existing tests with proper rigour, and whether that’s a good thing or a bad thing) but you can’t really argue as the current official narrative has it, that this isn’t even a thing. The graphs make it really obvious.

The quarter BEFORE Re B-S, 1830 decisions by ADMs that adoption was the right plan for the child. Re B-S hit in September 2013, so it would be the third quarter of 2013 when ADM’s would have known about it. Those numbers, 1290.  It is the sharpest drop of the entire graph.  It has continued to slope downwards since then, but the bit in the graph that looks like abseiling down the Eiger is Re B-S. You absolutely can’t dispute it.

The Myth-Buster document was published in December 2014, so we can’t see from the stats and graph whether that has led to a reversal of the pattern in the graph. We’ll see that in about six months, I suppose. Similarly, whether the Court of Appeal’s softening of position on “nothing else will do” translates into an increase in ADM decisions that adoption is the plan.

 

[Cynically, I doubt it. I’m well aware that I am not a normal human being in my interest in case law, and I haven’t always had it. For about my first five years in child protection law, you could get by on three cases  Re G (interim care is a deep freeze affording no tactical advantage), H and R  (the nature of the allegation doesn’t increase the standard of proof) and whatever at the time was the law on residential assessments.  Re B and Re B-S, with their hard-hitting message and backed by a soundbite ‘nothing else will do’ resonate with people much more than the inching back, case specific, deeply nuanced and incremental Court of Appeal cases since that time.  Even the Re R case https://suesspiciousminds.com/2014/12/18/re-r-is-b-s-dead/  that was intended to slay the Re B-S myths is so nuanced that it takes nine or ten reads to have a grasp of what it is actually saying, and almost the day after you’ve done that, you couldn’t actually put it into a meaningful summary sentence]

 

 

[I argued before HERE  https://suesspiciousminds.com/2015/05/15/adoption-rates-in-freefall/  that the Press narrative that the case law will mean ‘children suffering in unsuitable and unsafe homes’ is an emotive over-simplification. I’d stand by that. At the moment, the case law on adoption has been going through its most radical changes in a generation, and it is certainly less predictable than it has ever been to decide what sort of case will result in a Placement Order and what won’t.  We are in a period of re-balancing. I don’t know yet whether these figures show that we have found the right level of those cases where adoption IS the right plan to put before the Court, whether there are even more drops to come, or whether there’s an over-reaction to it.   I have a suspicion, given that the entire history of child protection and family justice is about lurches from child rescue to family preservation and vice versa, and an eventual settling down at one particular side of the scale but hopefully not at the absolute far end of the scale…]

 

Given the huge push to recruit adopters – all the Government policies about making it easier, less time-consuming, less intrusive, more appealing , this statistic may get less attention but must be concerning

 

Registrations to become an adopter have decreased by 24% from 1,340 in quarter 2 2014-15 to 1,020 in quarter 3 2014-15. The number of adopter families approved for adoption has decreased by 3% from 1,240 in quarter 2 2014-15 to 1,200 in quarter 3 2014-15.

 

 

We will wait to see how the Court decisions that moved children from prospective adopters to the birth family (which is a completely new phenomenon, having not occurred at all prior to December 2014) has on adoption recruitment and retention.

 

 

The backlog (which had stood at 1 approved adopter for every 3 children approved for adoption) has been nearly cleared.

 

Our most recent estimate for the “adopter gap” suggests that the gap has closed, and we now have more adopters than children waiting. However, there are still 2,600 children with a placement order not yet matched and the relevance of this measure assumes that matching is working effectively.

 

 

The number of adoption ORDERS made is, they claim the highest since recording began

 

3,740 children adopted in quarters 1 to 3 2014-15

2013-14 saw the highest number of adoptions from care since the current data collection began in 1992, with 5,050 children adopted from care.

 

 

When I have looked at Court stats on adoption http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-316163   5050 looks like a pretty average year, with there having been figures nearly 50 per cent higher in the earlier 1990s.   (Now, it may be that the measure that is being used here is “Adoption of children who are in care” and that the Office of National Statistics figure bundles that in with ‘step-parent adoptions’,  so it is not a like-for-like comparison)

 

 

 

Finally, this statistic initially looks positive (how long does it take between a child coming into care and a child being placed for adoption  – you’d WANT that number to go down, since whether you want more or less children being adopted, most of us could agree that we wouldn’t want children to wait so long for a family to be found)

 

In 2013-14, the average number of days between entering care and placement was 594 days, an improvement from 656 days in 2012-13. Latest quarterly data suggests there has been a further improvement to 533 days. At 216 days, the average number of days between placement order and match in 2013-14 was a slight improvement on 2012-13. However, the latest quarterly data suggests that this has increased to 241 during quarter 3 2014-15.

 

 

The closer inspection is this :-

 

That since the 2012 figures, there has been legislation and huge resources expended on bringing care proceedings down from what was an average of 55 weeks to a target of 26 weeks.  That OUGHT to have had far more of an impact than 60 days being shaved off the time between entering care and a family being found.  It should be something more like a saving of 200 days. As the time from Placement Order to placement had gone slightly down (but was now going back up), that SUGGESTS that IF there is a saving of 30 weeks from start of care proceedings to Placement Order, but it results in only a time saving of 8 ½ weeks,  that there’s about 20 weeks unaccounted for.

 

Does that mean that :-

 

  • Whilst average time of care proceedings has gone down, it hasn’t gone down as MUCH for cases where adoption is the plan?  (That makes sense, as those are the ones that are most contentious and where all avenues tend to be exhausted?)
  • There’s been an increase in the time that children who go on to be adopted are spending in care PRIOR to care proceedings?  That “front-loading” element.

 

 

I don’t know how or if statistics on those issues are being kept.  It must be problematic that if we are compressing the time that care proceedings take, with all that involves, but barely reducing the time that a child waits between coming into care and a new family being found, have we really improved anything for the child?   (Note particularly that with the latest quarterly data, HALF the time that has been cut appears to have been lost by an increase in the family finding process.  216 days of family finding and matching post Placement Order equates to 30 weeks)

 

 

The notional 200 day saving from faster care proceedings isn’t turning into a real saving, and that feels counter-intuitive. What we’ve been told for years is that if decisions about children are made by the Courts quicker, the children will be easier to place  – they will be younger and have less issues (and thus, you’d assume, faster to place).

Adoption and American immigration

I have been waiting since Re B-S for one of these cases to come up, and it finally has.

Where a family member is put forward to care for a child, and that family member lives in America, the net effect of American immigration law is that in order to be able to get the child into the country to live with that family member, you’d need an adoption order. Nothing less than that would do for American immigration authorities. BUT, does that amount to ‘nothing else will do’ for the English family Court?

 

Re S and T (children) 2015  looks at that issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1753.html

 

Much of the case also involves the horrid rigmarole because in order to apply for an adoption order in England, the prospective adopters need to be habitually resident in England or Wales AND to have had a home in England for 10 weeks before the application.  (In practice, this is an utter nightmare in any case where the relatives are American, as it just causes logistical problems that don’t arise in any other country).  So if you are interested in those matters  those are in the early parts of the judgment, and it shows you the tangle that the process can become.

But my real interest is in the analysis of whether the US immigration requirements of ‘adoption or you’re not coming in’ amount to ‘nothing else will do’

This case is made more complex because they were initially private law proceedings brought about because the father removed the children to Pakistan, their mother later died of cancer, and it seems that the children have been actually living in America since July 2014  (as a result of a ‘holiday’ order made by Singer J, permitting the children, who were wards of Court, to go and stay with their maternal great aunt and great uncle for a defined period of time.  It is the great aunt and great uncle who applied for an adoption order under s84 Adoption and Children Act 2002, with the intention of later applying for an adoption order under US law.

 

[There are complicated technical reasons why they had to do it that way round, but basically if the English Court didn’t make an Adoption Order, they wouldn’t be able to get one in America, and the children wouldn’t be able to live with them]

 

The father was not consenting to the plan of adoption, and was actively opposing it, and there was no Placement Order (or application for a Placement Order)

  1. The issues: can the father’s consent be dispensed with?
  2. The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.
  3. In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.
  4. I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:

    “the persons … whose consent is necessary for adoption … have given their consent freely.”

    Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:

    “ensure that consents have been obtained in accordance with Article 4.”

    Article 16(2) provides that the Central Authority of the State of origin “shall”:

    “transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”

  5. The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:

    “The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”

  6. English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.
  7. The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.

 

The President having decided that the Court COULD dispense with father’s consent, then had to decide whether it SHOULD.

  1. The issues: should the father’s consent be dispensed with?
  2. The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.
  3. In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.
  4. It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625. As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
  5. Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”
  6. I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.

 

 

The President is saying there that the US immigration requirement for adoption as a pre-requisite for the child living in the country MIGHT amount to “nothing else will do” or it MIGHT not. It isn’t determinative either way, and will depend on the merits and background features of the case.  [It appears that with strong reasons why the child can’t live with birth parents and has to live elsewhere, the immigration component might tip the balance, but where the ‘threshold’ component is weak, that it might not]

 

In looking at what might amount to ‘threshold’ against father, the President identified these matters

 

  1. What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:

    i) Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.ii) The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.

    iii) The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.

    iv) The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.

    v) The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).

    vi) The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).

    I am of course concerned with those matters which are relevant to the children’s welfare. It is hard to see that (v) and (vi), however deplorable, go to that issue.

  2. As against this, the following matters have to be borne in mind:

    i) Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).ii) The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014

     

 

I think that the Guardian’s conclusions are interesting and telling  (it is not really a right way to approach the law)

 

“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.

The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.

I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.

 

That comes very close to (if not actually arriving at) a conclusion that if there were no  relatives in America, the children should be with their father, but because the children would have a better life with the relatives in America, adoption is the right plan.  That’s precisely the opposite conclusion of Y v United Kingdom 2012  (the case that launched Re B and all that followed it)  http://www.bailii.org/eu/cases/ECHR/2012/433.html “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

If the Court were approaching this as a pure ‘beauty contest’  – who comes across better, who might be able to meet the child’s needs better, with whom might the child have a better life, the maternal great aunt and great uncle would have won hands-down.  It is decidedly possible that if the great aunt lived in Ilford, not Illinois, and the order was a private law order rather than adoption, that the Court would have gone with that option.  There’s no presumption in private family law that a father would beat a grandparent or aunt. Re E-R 2015 for example http://www.familylawweek.co.uk/site.aspx?i=ed144557

 

But that’s not the approach with adoption.

 

It clearly isn’t the strongest set of ‘threshold’ or risks that father might pose the children, and the Guardian’s analysis whilst intending to be a reason why the Court should make the adoption order and allow the children to live /stay with their maternal family in America actually makes the legal argument as to why the Court shouldn’t.

 

 

  1. In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.
  2. This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?
  3. In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.
  4. The proceedings should now be brought to an end.
  5. I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

So the children were to be brought back to England by August, and to go back to the care of their father.

This, I think, is only the second reported case where a child was taken from prospective adopters who had been caring for the child for a significant period of time, and placed with either a parent or family member. The first of course was Holman J’s https://suesspiciousminds.com/2014/12/05/i-would-put-this-as-a-must-read-adoption-case-dynamite/

 

In that case, the interest of the child being placed with an aunt outweighed that of remaining with prospective adopters, in this one, the interest of the children being placed with dad outweighed that of remaining with prospective adopters who were family members.  (Blood is thicker than water, but parental blood is thicker than blood, perhaps)

Of course this one is rather different, since there hadn’t been any Court determination that adoption was the right plan for the child, and the plan of adoption arose solely as a result of US immigration law, but it does show that the Court is willing to implement the philosphy of Y v UK in real life cases and to reach decisions that it feels to me would not have been made in 2011.

Good luck anybody running a case with an American relative in getting the case done within 26 weeks.

 

Adoption rates in freefall

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

 

The Painting that Ate Paris (Doom Patrol)

The Painting that Ate Paris (Doom Patrol)

 

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

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

 

 

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

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

 

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

 

Let’s have a look at it bit by bit.

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

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

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

 

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

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

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

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

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

 

Next

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

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

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

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

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

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

Anything else?

 

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

 

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

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

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

 

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

 

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

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

Special Guardianship versus adoption

 

 

 
Ever since Re B-S, there has been a potential issue for the Courts to resolve – given that Re B-S talks about the test in leave to oppose being not about whether a parent might get the child back necessarily but about whether the Court might make an order OTHER THAN Adoption, with the test for making an adoption order still being ‘nothing else will do’ – what happens if a parent invites the Court to leave the child in the placement, but make a Special Guardianship Order rather than an adoption order?

Why does it matter? Well, if you are a prospective adopter about to commit to taking on a child, you might need to know that you might not get to adopt the child after all, if you are someone who already has a child placed with them that you were intending to adopt, it might be that you will end up with an SGO instead, and if you are a birth parent who wants to stop the adoption happening you would want to know whether the Courts are going to entertain (even in cases where you can’t persuade them to return your child) making a less drastic order than adoption. Also important for Judges dealing with those cases, social workers planning for the future for children, lawyers advising clients and politicians making policy about adoption.  As even the President of the Family Division has recently acknowledged, there’s a tension between the direction of travel of Government (social workers should stop thinking of adoption as a last resort) and the Courts (adoption is still a last resort, even way after the Court have already decided it is in the child’s best interests to approve a plan of adoption)

So this is the first case that rolls up its sleeves and gets under the bonnet of the issue, the High Court have just dealt with exactly such a scenario. I wrote about the hearing that decided that the father should be given LEAVE to oppose the adoption order here

https://suesspiciousminds.com/2014/02/14/re-b-s-can-itself-be-the-significant-change-of-circumstances/

And this is now the judgment from the contested adoption case itself.
Re N (A child) Adoption Order 2014
http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1491.html

The Judge in this case concluded that an adoption order was preferable for this child than SGO, weighing the pros and cons of each type of order, and bearing in mind that adoption could not be sanctioned unless “nothing else will do”

46. I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.
47. I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

He sets out clearly that the Court WOULD have jurisdiction to make an SGO rather than adoption order (and to do so even where the prospective adopters didn’t WANT an SGO)
32. the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned
I think the most important part of this judgment will be this line from para 48

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate

 

(If you listen carefully when you read that sentence you can hear the sound of future litigation – and a lot of it)
The Judge goes on to set out what those exceptional circumstances are, and one can readily see that most of them would not arise in a traditional SGO v adoption case

(a) N’s serious disabilities require a lifelong order rather than a special guardianship order that expires on her 18th birthday. I am satisfied that, regardless of the excellent progress that she has made, she will still be dependent on the Applicants, probably indefinitely and certainly well into her adult life. Many of her disabilities (such as her autism and development delay) have not altered and will not alter notwithstanding her progress in other areas. I am not going to consider in detail the jurisdiction of the Court of Protection after her 18th birthday. The simple fact of the matter is that she needs to have as her legal parents at that point the people who will by then have cared for her exclusively for over 17 years of her life. This is what makes this case so exceptional. Special guardianship simply does not fit the bill in this regard at all. Adoption does. It is necessary and required.
(b) The only home that she has ever known has been with the Applicants. She is embedded emotionally into their family but she needs to be embedded legally there as well. This is as important for her as it is for the Applicants and their son. I accept that she does not and probably never will understand the legal concept of adoption but she does understand the concept of being a full member of a family. It is overwhelmingly in her interests that she is a full member of this family as a matter of law. In short, she must have permanence and total security there. Adoption is the only order that will give her that permanence and security.
(c) Whilst I look at this entirely from the perspective of N, the position of the Applicants is a very relevant consideration. They have invested an enormous commitment into N. They need to know that her presence with them is complete and not susceptible to challenge. If that were not the case, I consider there is a real possibility that it might have an adverse impact on the welfare of N. This would not be because the Applicants would not remain fully committed to her but the uncertainty and potential concerns as to what might be around the corner and what problems they may encounter when she attains her majority have a real potential to cause difficulties for N herself.
(d) I am very concerned about the litigation that has taken place in this case. Litigation is a real concern for carers at the best of times. This litigation has been going on for over five years at an intense level. I have not heard oral evidence from the Father and Paternal Grandmother but I do have a real concern that a special guardianship order would not be the end of the battle. The Father’s statement talks about unsupervised contact, staying contact and even contact in Nigeria. In one sense it is understandable why he makes such comments. I am, however, concerned that he has not fully come to terms with being ruled out as a carer. Mr Macdonald’s submissions reinforce that concern in so far as they repeatedly refer to there being no threshold findings having been made against him. The risk of ongoing continuing litigation with no understanding of the effect of that on N’s carers is something that this court must consider in deciding on the appropriate order.
(e) N has never lived with her Father or her Paternal Grandmother. There is no family member available to care for her. The Father and Paternal Grandmother have been ruled out and their appeal in that regard was dismissed. N has only ever had supervised contact to them. This is not to downplay their importance. It is merely a fact. It is accepted by the Applicants that the Father and the Paternal Grandmother are a vital part of N’s heritage. They are committed to contact. I accept the evidence that this is a genuine commitment that will not be reconsidered once they have adopted N. They have shown their attitude clearly by setting up contact with N’s mother’s other children. It follows that adoption in this particular case will not stop contact from continuing with the parental birth family. This is important.

 

Breaking them down, the 5 exceptional factors here were

1. The child has serious physical disabilities that will require lifelong care, not just until her 18th birthday
2. The only home she has ever really known is with the prospective adopters
3. The enormous effort and commitment that the prospective adopters have put into the care of this child
4. That this child has been the subject of intense litigation for 5 years and making an SGO would probably see that continue in the future
5. That the father has never cared for the child and that the evidence is plain that he would never be able to

But even in this case, the Court was plain that ongoing contact (four times per year) would be necessary, though the Court declined to make a contact order on the basis that the adopters were in agreement with that plan for contact.

It seems, therefore, that in a contested adoption hearing where the parents have as either their primary position or a fallback position – there should be an SGO rather than an adoption order, there is a live issue to be tried. (and if that’s the case, if a parent actually puts forward that argument rather than straight ‘give me the child back’, their application for leave to oppose must surely have some solidity and the prospect of being granted?)

Most parents, of course, will want to oppose the adoption order on the basis of the child coming back to their care – obviously that’s what they want. But those who take up the fallback position of “Even if not, an SGO is better than adoption, because adoption is the last resort” have a case that would be tricky to throw out at leave stage.