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Statutory orphans 2 (erm, “This time it’s practical”?)

 

The High Court have given some guidance [in A City Council v DC 2012]  on how to deal with applications by a Local Authority to revoke a Freeing Order when their plan is no longer adoption. I suggest that it may have implications for the large number of imminent-ish applications to revoke Placement Orders in similar circumstances.

 

That avalanche is hanging over us, just waiting for either the Minister to give a hearty shout or for the starting gun on adoption target timescales to be fired, and the whole lot will come down.

 

look out below

look out below

You may recall that Mr Justice Peter Jackson gave a scorching judgment castigating the LA and the Independent Reviewing Officer for leaving children in limbo and not making revocation applications where the Freeing Order was no longer being contemplated as a prelude to adoption.  

 

That was in Re A, S and Others v Lancashire 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html 

 

 

The blog on that is here:-

https://suesspiciousminds.com/2012/07/02/definition-of-chutzpah/

 

The case is A City Council v DC & Others 2012  and can be found here:-

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/8.html

 

There’s a curious esoteric debate about what happens when a Freeing Order is revoked, whether the Court should  revive the Care Order, or as suggested by the parents advocates, make an Interim Care Order and get stuck into a root and branch review of the new care plan. The Court decided that the former, as set out by lots of previous case law, is the correct approach.

  1. Mr. Nuvoloni on behalf of the father was in his written material understandably preoccupied with his lay client’s human rights. He ‘floated’ in his written submission an argument that the new s20(3)(iia) could, and should, be interpreted as permitting the court to make an interim rather than a full care order upon revocation of the freeing order. He submitted that to deny the parents the opportunity to challenge or scrutinise an up-to-date care plan, through the medium of an interim care order, would be accepting an interpretation that offends against the requirement of the Human Rights Act 1998 and in particular section 3 of the Human Rights Act 1998 which requires that primary legislation, in so far as is possible, is to be read and given effect in a way compatible with Convention rights.
  1. Mr Nuvoloni submited that the revival of a full care order would amount to a breach of Article 6 and 8 of the Human Rights Act of both the parent and child.
  1. In oral argument Mr Nuvoloni revised his position and accepted that the interpretation he proposed which would allow the court to make an interim care order with a view to scrutinising a new care plan, stretched the wording of the statute beyond breaking point. Further he accepted that if a procedure was adopted by the courts whereby the parents were given sufficient information to enable them to obtain legal advice and, if advised, thereafter to make an application for contact or the discharge of the care order, then their Article 6 and Article 8 rights as reinstated parents would be adequately protected.
  1. Mr Nuvoloni, in my judgment was wise to make the concessions he did and to concentrate, (as he has done most effectively), on how best the court should now proceed. From a statutory interpretation point of view, the section is, in my judgment capable of only one interpretation; the wording is to revive……any care order within the meaning of that act. The use of the word revive in the statute shows that what is intended is that the full care order (made immediately prior to the freeing order), is to be restored and accordingly a care order will be the order determining J’s legal status following the exercise of the court’s inherent jurisdiction to revoke the freeing order.
  1. Prior to a freeing order being made, it was necessary for the court to have made a full care order, there is therefore no other order that could be revived pursuant to s20(3)(b)(iia) other than the care order made immediately prior to the freeing order. The wording of the statute is unambiguous. It does not provide the court with any residual discretion; for example to replace the freeing order with such order as the court thinks fit having scrutinised a care plan or alternatively with an interim care order made earlier in the original care proceedings.
  1. I note that both Black J in Re J and Peter Jackson J in A and S children v Lancashire CC [2012] EWHC 1689 (Fam) (para 95) not only made full care orders upon the revocation of the freeing orders but that all parties in both cases accepted the interpretation of the Act which is now accepted on behalf of the father.
  1. The revival of a full care order is not in my judgment incompatible with either Article 6 or Article 8. The effect of section 20 AA 1976 as amended, not only revives the care order, but also reinstates parental responsibility to the former parents. Those parents, in the exercise of that parental responsibility, are thereafter entitled to make an application for contact or to seek the discharge of the care order (subject to the exceptions in the guidance referred to below). In the meantime the care order regularises the child’s legal position whilst recognising that the child is, and often has been for many years, ‘in the care’ of the local authority.
  1. A local authority seeking to regularise the legal position of statutory orders will, as a matter of course, have to file a statement in support of their application for the revocation of a freeing order. Such a statement will, of necessity, set out not only the history of the child since he or she was freed for adoption but also that child’s present circumstances; the statement will be served on the former parents who will be parties to the proceedings. It follows therefore that at an early stage in the proceedings (subject to the exceptions in paragraphs 42(ii) and 42(iii) of the guidance set out below) the parents will have an opportunity to make an application for either contact and or the discharge of the care order.

 

 

All of that is more law geeky than practical, but the parties asked the High Court for practical guidance on the procedure to be followed in these applications, and the High Court, in the form of Mrs Justice King duly obliged.

 

  1. I am grateful for the assistance given by Counsel and to the local authority solicitor in this case in putting together this procedural guidance which has been approved by the Acting President Mr Justice Holman.

A: ISSUE & APPLICATION

i) The general rule is that any application by a local authority asking the court to exercise its inherent jurisdiction in order to revoke a freeing order should be made in the High Court on notice to the former parents including those former parents who have made a declaration under s18(6) of the Adoption Act 1976.

ii) Exceptionally an application may be made without notice (and in such circumstances the remainder of this guidance shall be departed from as appropriate). When making such an application the local authority must file a statement in support giving reasons for seeking a without notice order by reference inter alia to the principles in KY v DD [2011] EWHC 1277 (Fam) (a wardship case) where Theis J, (giving guidance endorsed by the President of the Family Division), re-emphasised the established principles in relation to without notice applications as set out in Re W (ex parte orders) [2000] 2 FLR 927; Re S (ex parte orders) [2001] 1 FLR 308; B Borough Council v S and anor [2006] EWHC 2584 (Fam),

iii) Similarly any application to withhold any of the information, which would otherwise be included within the application as set out below, must be made subject to the principles set out by the Supreme Court in Re A (A Child) [2012] UKSC 60 and be accompanied by a statement in support of the application.

iv) Good practice would require that, if they can be traced, the former parents should be told of the forthcoming application face to face by a social worker and be given some sort of explanatory note to help them to understand the nature of the application, which note will thereafter be of assistance to them in obtaining legal advice and public funding.

v) The application should be made using Form C66 and the requirements for a copy of the child’s birth certificate and or a copy of the entry into the Adopted Children Register should be dispensed with, (if necessary by order made at the first hearing).

vi) The following documents should be filed in support of the application and served, together with the application on the former parents: [Permission for the disclosure of those documents which were generated in the earlier care proceedings should be sought from the trial judge (or local Designated Family Judge if the trial judge is unavailable), prior to issuing the application in order to ensure that service of all documents takes place at one time]

a) Copies of the care order and freeing order

b) A transcription or note of judgment from the previous care proceedings

c) The final care plan from the care proceedings

d) A short neutral chronology covering significant events prior to the child’s admission to care and significant events following the making of the freeing order

e) The children’s guardian’s final report from the care proceedings

f) The Looked After Child (LAC) review minutes, usually for the last two years preceding the making of the application, but in any event to include the LAC review where the local authority made its decision to change its care plan from one of adoption.

g) An updated care plan

h) A statement by the allocated social worker or other appropriate person which should include the following information:

i) The child’s social history including details of any placement breakdown, all placement moves and of any ongoing contact whether with the former parents or either of them or with siblings;

ii) Any evidence of the child’s wishes and feelings of which the social worker/carers are aware; [there should ordinarily be no direct discussion with the child(ren) about the consequences of revocation, including any attempts made to seek to ascertain their wishes in relation to contact prior to the first directions hearing].

iii) Any evidence of the wishes and feelings of the former parents if known.

iv) Details of the involvement of external agencies including therapy providers, police and other local authorities

B: FIRST HEARING/ DIRECTIONS:

(1) The application shall be listed for Directions before a High Court Judge or before a Circuit Judge sitting as a High Court Judge sitting pursuant to section 9 of the Supreme Court Act 1981. It may be that the Family Division Liaison Judge for each circuit may wish to create a list of Circuit judges approved to deal with such applications in order to avoid delay in the allocation and hearing of the cases.

(2) At the first directions hearing:

(a) The court will decide the preliminary issue as to whether it is in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents. It is envisaged that by the very nature of the application in most, if not all cases, it will be appropriate formally to revoke the freeing order at this hearing. If for any reason the freeing order is not revoked at this stage it should be relisted for determination as soon as practicable.

(b) The making of the order revoking the freeing order will:

i) Revive the original care order

ii) Revive the appointment of any testamentary guardian

iii) Give parental responsibility to the mother

iv where appropriate, in accordance with the relevant statutory provisions, give parental responsibility to the father.

(c) Upon the revocation of the freeing order, the care order having been revived and parental responsibility having been reinstated, the court should give directions for the future management of the case:

i) Consideration should be made as to whether the court should make an order authorising the local authority to refuse contact between the child and the parents

ii) The court should make directions requiring the parents to make any application to discharge the care order/apply for a contact order within 56 days (or such other period as may be specified by the court)

iii) The court should include a request that in the event that the parents, or either of them, issue an application that the original children’s guardian should, if possible, be appointed to represent the child(ren) and all the documentation filed should forthwith be served upon the original or newly appointed children’s guardian.

iv) The court should consider whether any other party to the previous proceedings should be served with notice of the proceedings and, if so, what if any documents should be served.

v) The court should list a further directions hearing at which directions will be given consequent upon any application for discharge of the care order/application for a contact order made pursuant to the direction made at para 2(c)(ii) above

vi) In the event that no application has been made by either parent or any party served under the direction at para 2(c)(iii) (and the court is satisfied that it is appropriate to do so), the court will ordinarily conclude the proceedings by continuing the s34(4) CA 1989 order where appropriate and making any appropriate order for costs.

 

 

 

Stripping out all of the references to the High Court, I would suggest that most of this is going to be applicable to the many applications for revocations of Placement Orders that are forthcoming.

 

 

[If you aren’t aware of this budding avalanche and the reasons for it, it is essentially this: –

 

where an LA applied for a Placement Order and obtained one, but haven’t been able to get an adoptive placement and have since stopped looking, there’s a triple pressure to make applications to revoke such Placement Orders :-

 

  1. The fear that the human rights claims in Re A, S and Others v Lancashire might be broadened beyond Freeing Orders and into Placement Orders.
  2. The murmurings from Ministers that they will be expecting LAs to clear the decks of all such cases, so that there is proper information on which children subject to Placement Orders are actively waiting for placements, rather than the waters being muddied with children subject to Placement Orders where nobody is searching for a placement any longer.
  3. The desire of the LA’s for the same reason, to want to clear the decks so that the figures on ‘average wait for adoptive placement’ is not skewed by children who have been subject to Placement Orders for two years or more when the search has been given up  

 

 

The reason this avalanche has not yet translated into court applications is because nobody really knows whether this will just be a simple standalone “is there a need for the Placement Order to continue if no adoptive placement is being sought?”  case, or whether it will be a reopening of the entire case, fresh assessments of parents, challenges to care plans, contact.  If the former, making the applications will be simple and straightforward, if the latter, issuing them will be like pushing many many new sets of care proceedings into an already overloaded system.

 

 

And yes, there are decent arguments that where a parent believed their child would be adopted and the search has been given up, that this should be back before the Court with ‘all to play for’               ]

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Definition of chutzpah

An analysis of the High Court decision in A, S and Others v Lancashire County Council 2012, and the human rights breaches identified therein.

I remember that Chutzpah was explained to me many years ago as being the quality that enables a person on trial for murdering both of his parents to plead in mitigation that he is an orphan. And this High Court decision is very much about orphans, or at least “statutory orphans”

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html

This is a category of children, who the Court initially decided should be adopted, but didn’t get adopted and end up being long term fostered, but with that significant change in care plan never having been ventilated in the Court.

There have been grumblings about this group of ‘statutory orphans’ for some time, but this is the first time that a Court has ruled that it is incumbent on both LAs and Independent Reviewing Officers to take these children out of ‘statutory orphanage’ and have the case back before the Court.

It emerges from litigation involving multiple children against Lancashire County Council. I do not pick on Lancashire in this analysis, save that they were unlucky enough to be the authority who ended up with this issue before the High Court.

It deals with the not entirely unusual, though sad, situation where a child having been made the subject of a Freeing Order (or now, a Placement Order) does not go on to have the adoptive placement that the Court felt was right for them, being found. This is not necessarily as a result of a lack of effort or desire or commitment.

It is the sad reality that all of the adoption scorecards and media rhetoric ignores – there are some children who need to have adoptive families found for them who simply won’t get that family. They are the wrong age, the wrong gender, the wrong ethnicity, or the damage that they have endured has simply been too much for any adoptive carer to countenance. Sometimes children with all of these ‘anchors’ weighing them down still manage to get an adoptive family – it is impossible to say what might strike a chord on a particular day with a particular set of adopters willing to take on a child when they see a range of details of possible children. Sometimes those children you thought impossible to place just find a set of carers who just fit. Sometimes, they don’t.

This case deals with the ones who don’t. Where the care plan of adoption can’t be delivered, and the child remains subject to a Freeing Order or Placement Order, they are in a peculiar sort of limbo, which this Judge describes as being a ‘statutory orphan’. The parents PR is circumscribed far more than it would be if the child were merely subject to a Care Order, and the primary body who exercise PR is the Adoption Agency, rather than the Local Authority. Now, for all practical purposes, the Adoption Agency and the LA are the same thing, but the demands on them where a child is subject to a Placement Order and where the child is merely subject to a Care Order are different, subtly so, but significantly so.

In this case, the Judge made the following declarations that the LA and the Independent Reviewing Officer had behaved in a way that breached the children and parents human rights.

[Some of these may be purely case-specific, but there are more important general principles, which I have put in italics]

1. Lancashire County Council has acted incompatibly with the rights of A and S, as guaranteed by Articles 8, 6 and 3 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that it:

(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)

(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of: (a) The protection afforded to children under the Children Act 1989; (b) Contact with their mother and/or other members of their family; (c) Access to the Court and the procedural protection of a Guardian. (Arts. 6 & 8)

(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).

(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)

(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)

(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)

(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)

2. Mr H, the Independent Reviewing Officer for A and S, has acted incompatibly with the rights of A and S, as guaranteed by Articles 8 and 6 of the European Convention of Human Rights and Fundamental Freedoms 1950, in that he:

 (1) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8) (2) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8) (3) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)

It must, as a result of this case, be at the very least arguable, that any child who is the subject of a Placement Order, but for whom the adoption agency have now ceased searching for an adoptive placement, has a potential claim for breach of human rights against the LA (if they don’t act to change their legal status and revoke the Placement Order, or at the very least, ensure that the practical differences that exist between a child subject to a Placement Order and Care Order in terms of LA obligations towards them disappear in this situation) and the IRO (if the IRO does not push the LA towards remedying the situation, or failing that, notify CAFCASS of the problem)

Now, it is important to note that whilst this Judge made it plain that children remaining on Freeing Orders should have that remedied, he did draw a distinction between Freeing Orders and Placement Orders and it is at least arguable that this judgment does not go so far as to say that a Local Authority or IRO is in breach of human rights by not applying to revoke Placement Orders where it is clear that the plan is no longer adoption. But the door is at the very least, ajar on that point for a future claim.

 

There are relatively few Freeing Order cases now  (since they stopped being made in 2002, and most of the children who were made subject to them will have been placed, or reached adulthood by now), but there are substantially more cases of children subject to Placement Orders who will never be placed.  I would not be surprised if the national total was somewhere between 1,000 and 2,000 such children.  Are revocation applications to be made on each?

 

And are each of those going to be swiftly resolved – with the parents and Guardian simply accepting that the Placement Order be revoked and the Care Order (made at the time, but simply ‘frozen’ whilst the Placement Order is in effect) revived? Or are some of them / most of them going to result in a root and branch review of placement, contact, the possibility of rehabilitation, fresh assessments etc?

Without saying too much, I suspect that most authorities will slavishly follow this judgment in exactly the same way as they slavishly follow the Supreme Court’s judgment about the provision of section 20 accommodation to teenagers. Or, as always, Shakespeare puts it best “A custom more honoured in the breach, than the observance”

*Cautious note – I in no way speak for my own or any LA here, this is just my own personal cynicism.

The IRO point is an interesting one, and I would be interested to know where (if orders for damages/costs orders are made) any costs arising from such a claim would be funded.

The Court have not yet dealt with that aspect at all, but I suspect some financial penalties will ensue. Is the IRO at any personal risk from this, or are any damages ordered against them falling on them as part of their profession and met by the LA? (This would be quite straightforward in relation to the social workers on the case, as the LA would have to fund the costs, but IROs occupy a peculiar position both being simultaneously inside and outside of the LA)

The Judge in this case helpfully recounts exactly why the IRO role was beefed up following the House of Lords (as it then was) politely thanking the Court of Appeal for their creativity in inventing ‘starred care plans’ but saying the legal equivalent of ‘it’s not you, it’s me’ and ending that ‘ill-starred’ relationship at an early stage.

I have spoken before on this blog about how rarely the IRO provision to legally whistle-blow to CAFCASS about failure of a Local Authority to implement a care plan is used, and how the power for CAFCASS to actually make an application to Court in that event has never been used. (If you want to know the numbers – 8 total referrals to CAFCASS, 0 total applications arising from them)

CAFCASS weren’t dragged into this one, but I can’t see why, in a theoretical situation where the LA hadn’t revoked, the IRO had made the referral and CAFCASS had not made an application, that CAFCASS would not be added to the list of breaches.

(Of course, Parliament could have addressed this all very simply by ensuring that a Placement Order had a “Mission Impossible” clause, where it would self-destruct after two years – unless an adoption application had been placed before a Court and not yet resolved.)

 

 I don’t think that the Judge was asked to address whether the law itself was incompatible with Human Rights, and I think it would not be, because there is provision for the LA to make an application to revoke; but the law could easily have placed on the LA a duty to make such an application to revoke where the plan is no longer adoption and the order no longer appropriate – which is effectively the position now following this case)

I suspect the attitude of LA’s and the volume of revocation of Placement Order applications will be informed once the level of costs and damages Lancashire endured are known and more to the point, whether the principles in this case are confined to Freeing Orders or have that broader construction.

 (And if I were a journalist, an FOIA request to HMCS for the numbers of revocation applications over say the last 3 years and the next 18 months would be interesting – if it isn’t spiking considerably, then statutory orphans are still in the position that the High Court felt was wholly unacceptable and causing them irreparable harm)