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DFE report on Special Guardianship reports… my report

 

There has been some concern about the increase in the numbers of Special Guardianship Orders made, notably post Re B-S, and whether they are being made because Courts are sure that they represent the best outcome for a child in any particular case or whether they are sometimes ending up as rushed jobs because one can’t rule them out on a “nothing else will do” test.    [As with almost anything in Family Justice, whether you think an increase or decrease in any particular outcome is a good or bad thing depends entirely on your perspective. ]

The DFE called for responses on this  to consider whether there was  a problem and what solutions might be. They have now published their report.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/487243/SGR_Final_Combined_Report.pdf

 

 

 

In summary, the review has found that:

  • The majority of SGOs are made to carers who have an existing relationship with the child and who, with some appropriate support, intend to and will be able to care for the child until 18;
  • There is a significant minority of cases where the protective factors we expect to see in each case – described above – are not in place. In particular, the following issues have been found:
  • Rushed or poor quality assessments of prospective special guardians, for example, where family members come forward late in care proceedings; where there has been inadequate consideration early on of who might be assessed; when assessments have been carried out very quickly to meet court timelines; or when the quality of an initial assessment is challenged, requiring the reassessment of a special guardian.
  • Potentially risky placements being made, for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term. In the Research in Practice case file analysis, almost half of the 51 cases considered had a SO attached to the SGO. This is particularly concerning where the child is not already living with the guardian, or where there is no or little pre-existing relationship. 70% of respondents to the Call for Evidence said that the assessment process for determining whether a prospective special guardian is suitable could be improved.
  • Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement, for example, where the special guardian has not received the information or advice to make an informed choice about becoming a special guardian, or where they receive little or inadequate support post order to ensure they can support the child’s needs. 72% of respondents to the Call for Evidence said that advice and support should be provided to children, special guardians and birth parents before, during and after the award of special guardianship.

The review indicates that the challenges identified with SGOs occur at different points in the care process, but an assessment that lacks quality at the start is a major contributor to the issues highlighted above. It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.

 

Next steps

 

 

As set out above, we need to ensure that children living under an SGO are safe, and that the placement gives them the best chance of good outcomes in their life. To be confident of this, children deserve to be assured that there is a robust assessment, that decision making is evidence-based, that the placement is assessed as being likely to last until 18, and that appropriate support will be available. The issues identified by the review suggest that these principles are not consistently followed.

Given this, we intend to:

  • Strengthen the assessment process, to ensure that assessments are more robust and more consistent for all children, and that they are based on the fundamental principle that the person being assessed is capable of caring for the child for the whole of that child’s life to adulthood;
  • Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship; and
  • Consider what support should be available to children living under special guardianship arrangements

 

 

The assessment process

Immediately, the Government will amend regulations and statutory guidance to require that the local authority report to the court on potential special guardians includes:

  • the capacity of the guardian to care for the child now
  • and until the child is 18
  • the prospective special guardian’s understanding of the child’s current needs and likely future needs, particularly in light of any abuse or neglect the child has previously suffered, and their ability to meet those needs
  • the prospective special guardian’s understanding of any current or future risk posed by the child’s birth parents and their ability to manage this risk
  • an assessment of the strength of the previous and current relationship between the child and the prospective guardian

 

 

 

They then say that they intend to publish further proposals in the New Year

 

The critical things are obviously what precisely is going to go into the Regulations that will be published “immediately”, and very critically whether the additional demands on the authors of the report will be counterbalanced by a statutory time period in which they should be carried out.

I’ve seen plans and press releases from Central Government before that don’t quite materialise into actual nuts and bolts of law.  For example, Simon Hughes spoke all around the country and got reported in the national press relentlessly that the Government would be introducing proposals to give all under 10s a ‘voice’ in court proceedings about them.  How this would differ from the voice that they currently have through the Children’s Guardian was never explained. Some people read it thinking that all children in all cases would attend a Court hearing always, some read it that some children would be allowed if they asked, some that children would all meet the Judge but not come into Court, some that children would be able to write a letter for the Judge (that everyone else would read? that nobody else would read? that some people would read?)

But no matter how often I searched and asked, nothing concrete as to what those proposals would actually be ever emerged.

And it now  seems to have been kicked into the long grass, which is so handy for those in Government. If someone ever went into the long grass behind Parliament armed with a scythe  (insert your own Aiden Turner picture here if you wish) they’d turn up all manner of exciting things.

 

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Adoption and Islam : Milton Keynes and the Diet of Worms

 

If you want the recipe for Milton Keynes v X and Y 2014 it is this

 

 

  1. Open can
  2. Decant worms from can
  3. Liberally distribute worms everywhere

 

[Quick disclaimer – this post and the case deal with issues of faith. I am a heathen unbeliever, and I’m afraid that flippancy is something of a knee-jerk reaction for me. I have genuinely tried to rein that in, and be respectful of other people’s faiths. I may inadvertently have failed to do that, or accidentally said something which will annoy or upset people of any faith. That’s not my intent. I don’t have beliefs myself, but I respect those who do.  The same will be true of the comments – keep them respectful please]

 

The case is here

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B102.html

 

It is a decision from a District Judge, and I actually think that it is a very good judgment – it is thorough, analytical and has a very good innovation of putting a real-person-friendly summary at the end of each section.

 

I think that it does lose it in the last few paragraphs, notably because you can’t actually tell whether the Judge has made a final order and if so what it is, but it was undoubtedly a difficult case to wrestle with.

 

Let me stress, that as a decision from a District Judge, it is not binding authority (other than being binding on the particular case concerned), but the DJ is right, it raises important wider issues and the Judge was right to publish it.

If I have the Judge’s gender wrong, I apologise, I had to take a guess at it. In doing so, I realised that my stock gender attribution for Circuit Judges is female and for District Judges male, soI deliberately flipped that around.

 

The central dilemma in the case is this – in a case involving children of Muslim parents, once the Court has decided that they cannot go home, is it right to weigh into the balance when deciding about adoption the Islamic beliefs about adoption?   And can those beliefs tip the balance?

 

It is somewhat odd that the case doesn’t refer to the lead authority on this very point, which is Newcastle v Z 2005. [Not the Judge’s fault, she ought to have been taken to it by someone]

 

In the Newcastle case, Mr Justice Munby, as he then was, had to look at this very issue. In that case, he had to look at whether mother was ‘unreasonably withholding her consent’ to adoption, given that her chief objection was based on her faith.

 

 

40. It is clear that the mother has a very deep and utterly genuine commitment to Islam.

 

41. That was apparent from the views she expressed in the course of her evidence, from the way in which she gave that evidence and, indeed, from the way in which she handled and kissed the Quran before taking the oath. I intend no offence when I say that her beliefs come over as the simple, unsophisticated and unquestioning faith of a woman who, despite her twenty-five years in this country, is still very much, I suspect, located socially, emotionally and religiously in the peasant society of Kashmir from which she sprang. But what is clear, and needs to be recognised, is that her faith is both very real and very important to her

 

[Thank goodness that he intended no offence, when describing her basically as a simple peasant girl with unsophisticated beliefs]

 

42. Her religious objections to adoption were simply but passionately stated. She considers adoption to be against her religion. She believes that the Quran – much of which she knows by heart – says that it is a mother and father’s responsibility to bring up their children and that adoption is wrong.

“Adoption is not allowed by Islamic law. My religious beliefs would therefore prevent me from giving my consent even if I thought that adoption was best for S which I do not.”

 

She believes that if a child is adopted then when he dies his soul will not get peace. She believes that if S is adopted, not merely will he lose his inheritance rights to certain family land in Pakistan but that she, in consequence, will not be able to go on Haj. She recognises that the Quran permits Kafala, which she describes as being very much like foster care, but says that Kafala is very different from adoption, as the child keeps the surname and inheritance rights of the biological family. She says that the Quran does not permit the full separation of a child from the family as happens with adoption.

 

 

[Haj is the pilgrimage to Mecca, which all followers of Muslim have to make once in a life-time. It is a core part of the faith. If the mother had not already undertaken Haj, and would be forbidden from doing so if her son was adopted, this would be very significant for her faith. But then, blood transfusion is forbidden by the Jehovah’s Witness faith, and that has never cut any ice with the High Court. And of course, the Courts have been ready to reject faith-based arguments from Christians about all sorts of things over the last few years]

Mr Justice Munby (as he then was) analysed some material and documents that explored the religious implications of adoption for those of the Islamic faith, concluding this:-

 

 

46. In broad outline all this material is to much the same effect. There is no adoption in our sense of the word in Islam, but Kafala is well established in Islam as a means of providing care to children, allowing a child to benefit from the care of a good home whilst at the same time losing neither his family name nor his rights in his birth family. Kafala is best understood as the long-term fostering of a child without the right to kinship. Under Kafala the “adoptive” family never takes the place of the biological family, whose ties to the child are never severed; the “adoptive” family are trustees and caretakers of someone else’s child. The Quran (33:4-5) specifically reminds “adoptive” parents that they are not the child’s biological parents:

 

“Nor has He made your adopted sons your (biological) sons. These are but (figures of) speech uttered by your mouths …

Call them by their father’s names; this is more equitable in the sight of Allah. But if you know not who their fathers were (call them) your brothers in faith and your friends”.

 

 

The Judge in Newcastle v Z accepted that these were the mother’s genuine faith-based beliefs about adoption and that they were a genuine part of Islamic faith.

 

48. As I read him, the expert in the case before Charles J treated adoption as something not recognised by the Sharia and also, it would seem, as something prohibited by the Sharia, in the sense that the natural rights which a parent has in relation to his or her child do not include the right to agree to adoption. But there is nothing in any of the materials I have been shown to suggest that to give up a child for adoption constitutes a wrong or a sin exposing the parent to penalty or punishment. The only reference to sin in this context that I have been shown is in the Quran (2:233) where the following appears:

 

“And if you both (parents) decide, by mutual consent and counsel, upon separation, you will incur no sin if you decide to entrust your children to foster-mothers, you will incur no sin provided you ensure in a fair manner, the safety of the child which you are handing over.”

 

49.  That said, this case is not to be determined by reference to some abstract principle of Islam but having regard to the mother’s own religious and other beliefs. The fact is – and I so find – that the mother believes (and believes that in so believing she is a good Muslim) that if S is adopted then when he dies his soul will not get peace, and she likewise believes that if he is adopted she will not be able to go on Haj. Those beliefs may or may not be borne out by the Quran and the Sharia, but they are the mother’s beliefs. And they are also, I am prepared to accept, beliefs that can conscientiously be held by a devout Muslim as the mother believes herself to be.

 

 

Nonetheless, the Judge in Newcastle v Z still went on to rule that the mother was ‘unreasonably withholding her consent’.   This bit of the judgment may call to mind angels dancing on the head of a pin, as the Judge rules that she is ‘reasonable’ but ‘unreasonable’ at the same time, but this was the nonsense of the 1976 Adoption Act, where the need to rule that a parent was behaving ‘unreasonably’ in objecting to non-consensual adoption led to a great many hearings where salt was rubbed into wounds.

 

51. The mother’s religious beliefs are in themselves reasonable – that I entirely accept – but she is nonetheless, in all the circumstances of this particular case, acting unreasonably in relying upon them as a justification for refusing consent to her son’s adoption. The mother’s religious views demand respect and call for particular and sensitive consideration, but at the end of the day the question is whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of S are sufficiently strong to justify overriding the religious and other views and interests of the mother. In my judgment they are. A reasonable parent in the mother’s position, even one holding the mother’s particular religious views, would nonetheless accept that adoption is in the best interests of her English son. The mother, in my judgment, is acting unreasonably in taking the other view.

 

 

We now don’t have the ‘unreasonably withholding her consent’ test, as the test for finally making a Placement Order is that either the parent consents, or the Court decides that the child’s welfare REQUIRES that consent be dispensed with.

 

It is that little word ‘REQUIRES’, which some years ago the previous President said was a ‘common sense English word’ (Re P) and has now been developed post Baroness Hale’s minority (but hugely influential) judgment in Re B, into the ‘nothing else will do’ principle; carrying on its back all of the proportionality concepts.

 

As outlined in Re B-S (see about one blog post in four from the last twelve months, and if you have not so far heard of Re B-S, then you’ve got quite a bit of reading to catch up on. Have you just been in Court with His Honour Judge Wildblood QC, by any chance?), the Court has to avoid a linear approach and to look at the pros and cons of each placement option. The Court can’t simply rule out a parent based on the negatives and then go to adoption as being what is left; the negatives of adoption and the positives of placement with a parent have to be taken into the mix.  The faith implications surely have to go into that balancing exercise, rather than as the Judge did in Newcastle acknowledge that they existed but that they played no real part in any actual decision.

 

So, the question is, post Re B-S, is the approach of Newcastle v Z still good law?

 

It would have to be the case that the parent’s genuinely held religious beliefs about adoption would have to go into the negatives column on the option of adoption. They probably (?) don’t, of themselves defeat adoption as a possibility, because if so adoption would just be ruled out for any child of Muslim parents.  One can readily see that being abused by people as a ‘get out of adoption free card’  by converting at the doors of Court.

 

So, Newcastle stands up on it not being determinative, but I suspect that in a finely balanced case, it might be a very important factor.

 

That raises some questions of its own – if the incorporation of that factor is capable of tipping the balance in a finely balanced case, then children of Muslim parents are potentially being treated differently to those of non-Muslim parents.   Possibly a case could involve two half-siblings, one half-Muslim and one non-Muslim. Are those children in the SAME case to be treated to different standards? What about a case where the parents are not Muslim, but the grandparents are? What about if only one of the grandparents is Muslim? Where do you stop? Where the child is 1/8th Muslim? 1/16th ?  How devout do the parents have to be? Is it intrusive and offensive to even enquire about that?

 

 

In the Milton Keynes case, the Judge was taken to the Islamic beliefs about adoption (they are similar to those expressed in Newcastle, but there are some interesting additions  – for example that the central figure in Islam had himself adopted a child)

 

 

The children here had a Muslim mother and a non-Muslim father

 

102. I am concerned that one form of long term placement that has not been realistically explored by the Local Authority, or by the Guardian, appears to be Special Guardianship, which the Guardian considers only in the context of a family member being appointed as special guardian and the Local Authority considers not at all. This case, I recall, concerns two boys who are Muslim; and X in particular is taking a serious interest in his Muslim heritage.

 103. The author “Huda” writing on the website Islam.about.com expresses the matter in this way:

 

The Prophet Muhammad (peace be upon him) once said that a person who cares for an orphaned child will be in Paradise with him, and motioned to show that they would be as close as two fingers of a single hand. An orphan himself, Muhammad paid special attention to the care of children. He himself adopted a former slave and raised him with the same care as if he were his own son.

However, the Qur’an gives specific rules about the legal relationship between a child and his/her adoptive family. The child’s biological family is never hidden; their ties to the child are never severed. The Qur’an specifically reminds adoptive parents that they are not the child’s biological parents:

“…Nor has He made your adopted sons your (biological) sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers; that is juster in the sight of Allah. .”

(Qur’an 33)

Of course, in English law, an adoption order has the effect of making the adopted child, for all purposes the child of the adopters. There undoubtedly are observant Muslims who are prepared to accept the idea of adoption, in the same way that there are undoubtedly Roman Catholics who accept the laws of divorce. But it must plainly be right to respect the view of any devout Muslim, who says in the face of that teaching contained in the Qur’an that adoption as understood in English law is unacceptable.

 

 

The Judge in Milton Keynes referred to the philosophy underpinning Special Guardianship Orders, which in part were a solution for the faith-based difficulties with adoption. She quoted the White Paper

 

 

5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.

 

5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.

 

 

This is, frankly, a bloody good point. Part of the rationale for introducing Special Guardianship Orders were that there are sections of the UK population that have a faith-based objection to adoption as it is practised in the UK. Surely if that’s the case, then it ought to be considered as a solution in such cases?

 

 

The Local Authority in this case were saying that there simply isn’t a pool of ‘prospective Special Guardians’ in the same way that there is a pool of foster carers or prospective adopters. Special Guardianship really only represented a solution for children who needed permanent homes outside of the family if there were existing people in the children’s lives (wider family or foster carers) who would be suitable and willing to have a Special Guardianship Order. You can’t HUNT for Special Guardians, you can only find a person who is able to care for the child and then ask them whether Special Guardianship is something they would want to do.

 

(In short, the Court can’t make Special Guardianship Orders generically and ask the Local Authority to find the right people at a later stage, it can only look at the right people and decide if a Special Guardianship Order was the right order)

 

The Judge wasn’t taken with that argument

 

it appears to me to be entirely unacceptable, and to put the cart before the horse, for a public authority to say “We haven’t got in place mechanisms to implement a measure provided by Parliament, and therefore we do not even propose to try”.

 

 

The solution that the Judge favoured was that the current foster carers be approached, with a view to permanently caring for these children under a Special Guardianship Order. It makes perfect sense to me for this enquiry to be made (and frankly, one would expect that it HAD been made prior to the final hearing)

 

I would invite the Local Authority to give careful consideration to the matter, and to whether it would not be more appropriate to regard long term placement with the existing foster parents as the outcome which would best meet the boys’ needs if permanency in it can be achieved.

 

I would ask the Local Authority specifically to amend their care plans to clarify timescales and the criteria on which they would seek to move the boys from their existing placement, and to make it explicit that the boys will not be separated from one another and will not be accommodated in short term placements

 

 

In a more general sense, there’s another time at which the Court might be weighing up Special Guardianship v adoption; and that is in a case where the parents are seeking leave to oppose the making of an adoption order.

 

The High Court dealt with that earlier this year in Re N (A child) Adoption Order 2014 (see this post https://suesspiciousminds.com/2014/05/10/special-guardianship-versus-adoption/   )

 

 

There are some key strands to be drawn together then

 

  1. In seeking leave to oppose adoption, Re B-S says that when measuring whether a parent’s application has ‘solidity’, one is not looking at just whether they would get the child back, but whether they could persuade the Court to make another order.
  2. The Court can impose a Special Guardianship Order on a person who doesn’t want one – there is clear Court of Appeal authority from the very first batch of Special Guardianship cases (Re S) that the Court could look at someone who had applied for adoption and make a Special Guardianship Order instead

 

  1. The Courts accept that there is a genuine faith-based objection in the Islamic faith to adoption as it is practiced in the UK

 

  1. Part of the rationale behind Special Guardianship was to resolve that faith-based objection

 

  1. From Re N, the High Court have set down a marker that it was due to ‘exceptional circumstances’ that they did not acquiesce to father’s request that the Court make an SGO as an alternative to adoption.

 

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”

 

 

It would seem to me, and I am no expert, just an opinionated law Geek, that the door to successfully challenge an adoption application on religious grounds and substitute it for a Special Guardianship Order is at the very least ajar, if not coming off its hinges.

 

 

Do Local Authorities, Guardians and Courts have to bear that in mind when considering making the Placement Orders in the first place? Do adopters who are considering taking on children with Muslim parents need to be advised that this placement might be susceptible to a successful challenge? Is there a need for a national recruitment and register for people willing to care for Muslim children for life under SGOs?

 

 

In the words of Chandler Bing – “Can open. Worms. Everywhere”

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.

It has never been difficult to distinguish between a Scotsman with a grievance and a ray of sunshine

 From the always smashing P G Wodehouse, and apologies to any Scottish readers, it is not intended to be a slight on your great nation, without whose many fine citizens I would be still walking on cobbles rather than driving on tarmac and would be without tea, trains, shortbread, Irn-Bru, golf and television, some of the worlds finest ever creations; which make our own English contributions of warm beer, morris dancing, queueing and committees seem somewhat shabby in comparison.   [Hopefully war between Suesspicious Minds and the fine fine people of Scotland has now been averted]

The title is more of a lead-in to the fact that you can always, as a family lawyer, tell when two local authority lawyers are attending court on the same case, representing two different local authorities. 

They don’t like being in competition with one another, you see.  When you represent a local authority, you normally sit at one distinct end of the Court room, and you do all the introductions and niceties and open the case, and when there are two of you, it just doesn’t feel right.  It is like being on the flight deck of a 747 as two men in hats simultaneously try to say “Bing bong, this is your captain speaking”

Being in the same Court room not only as another Local Authority lawyer, but one whose entire motivation and plan for the day involves leaving Court with one hot potato having been moved from their own authority to your own, tends to make for a rather tense and strained atmosphere.

It is rather like watching Lee Van Cleef and Clint Eastwood size each other up from opposite sides of the street, whilst noting that the clock is about to strike high noon.

 So, just as the title suggests, it is never difficult to distinguish between two local authority lawyers about to have a designated authority row, and a pair of happy sunbeams.

 Most of the really good knock-down rows I have had in Courts have been with other local authorities, rather than against other parties. And they are nearly always on the subject of designated authority.  

The Court of Appeal dealt with this in RE  Suffolk County Council and Nottinghamshire County Council 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1640.html

I will firstly declare a tiny interest, since the Judge at first instance was Her Honour Judge Butler QC, who was enormously kind to me in my early days and is probably largely responsible for every shred of good qualities that I have as a lawyer and cannot be blamed for any of the bad ones. So it pains me to see her being appealed, even more so to be successfully appealed.

Anyway, this case relates to Special Guardianship Orders, and the vexed problem of who picks up the responsibility and tab, after the case is ended.

In an ideal world, everyone involved stays put and lives in the same Local Authority throughout, and the applicant Local Authority swallow the SGO and the ongoing support package.

But, where the recipient of the SGO lives somewhere else, than the issue arises as to whether Local Authority A  (who started the case) or Local Authority B (who happen to be where the carer lives) get the order.

The law, as so often, tries to be helpful, but just promotes more litigation.

In short, it says “The LA who is responsible for the SGO and provision of support is the one where the carer resides  UNLESS the child was being looked after just before the SGO was made”

Sadly, that just opens up our traditional can of worms, as we all know that the world of whether a relative is caring for the child ON BEHALF of the LA (making the child looked after) or ON BEHALF of the family (making the child not looked after) is just as vexed.

Thankfully here, the two local authorities took the unusual and giddy step of actually talking with one another, with a view to sorting this out, and were therefore able at the Court of Appeal hearing to have a joint and coherent plan for delivering services to the family. The Court of Appeal missed a trick here in not summoning the Prime Minster to Court to alert him of this and inviting him to strike up some new sort of medals for valour for those members of the Local Authorities who had first dared to suggest this novel and dangerous approach.

But some useful footnotes were given by the Court of Appeal. And some of their observations are distinctly useful to Local Authority lawyers. [Underlining of those is mine]

  1. FINAL OBSERVATIONS
  1. As has already been intimated, out of area placements in prospective special guardianship cases may very well become much more common. A number of matters have arisen in this case which may well arise elsewhere. A few reflections may therefore not be out of place. It was for this reason that we decided to put our judgment in writing.
  1. The law both prescribes the incidence of responsibility and provides for a high degree of flexibility. If a child is a looked after child then responsibility lies with that authority; if not, it lies with the authority in whose area the child resides. It is therefore of critical importance when a child is placed out of area to have regard as to whether a child should or will remain looked after (i.e. under an interim care order or accommodated) or not (i.e. under a residence order). At the same time the local authorities involved should co-operate from the earliest stage in deciding who will in fact execute the statutory duties that arise and who will fund that work. Local authorities have powers to make sensible arrangements between themselves wherever primary legal responsibility may in fact lie.
  1. The role of the court should also be carefully considered. Section 14F imposes duties on a local authority but it does not empower the family court to direct how or (in some aspects) even whether such duties are to be performed. Moreover the statute gives the court no power to make directions as to payment of money or provision of services. Of course judges may properly express views to local authorities and are entitled no doubt to expect that they will receive serious consideration (just as judges can and do express views about adoption and care plans) and of course it is only the judge who in the end can make the special guardianship order.
  1. Special guardianship is potentially a very effective way of securing kinship care without on the one hand distorting family structures by adoption and without on the other leaving the child as a child in care with all the consequences so often resented by a growing child who feels stigmatised. It is essential both that local authorities in ‘out of area’ placements should co-operate with each other as early in the process as is practicable in the particular case and also that the court is clear about its role and powers. They may not be as extensive as is thought or as a judge may wish but I have no reason to think that the judge cannot make a valuable contribution to the process as is often done in both adoption and care cases where the court has the confidence of the parties involved.

This is the judgment of the Court.

 

[My other particular favourite P G Wodehouse quote, and one that I am afraid I have used from time to time is  “Mistaking it for a peach, Bingo Little had picked a lemon in the garden of love” ]