There’s an unofficial competition in this blog for ‘the worst case of the year’ and although it is only October, I think it may be hard to find one worse in the next two and a half months. It is an unwelcome award and nobody tends to give an acceptance speech for them, it is more “I’d like to blame the following for this…” than a sobbing Gwyneth, and certainly not a Sally Field “You…like me”
“Relinquish” in this context means the decision by a parent that they cannot care for their child and would want a Local Authority to arrange for the child to be adopted – consensual adoption would be another way of putting it. I don’t really care for the word ‘relinquish’ myself, but we don’t seem to have settled on a better word yet.
Anyway, this is a case in which parents who had four children found themselves with a fifth on the way (at a time when they appeared to be in the midst of a separation) and decided that adoption was for the best for the new baby. They asked the Local Authority to arrange this and the appropriate steps were taken, and prospective adopters were found who were willing to foster the baby during the process.
So far, everything is fine.
The problem arose when the parents changed their mind about adoption, and what happened then.
As this is a judgment about a Welsh case, the numbering of some of the statutory provisions may be slightly different to the English ones, but once you square the number of the section of the relevant Act, the wording is the same.
Foster carers v A, B & A Welsh Local Authority [2019] EWFC B52 (27 June 2019)
http://www.bailii.org/ew/cases/EWFC/OJ/2019/B52.html
The case was decided by Francis J
5 It is important that I record from the outset that Mr Boothroyd, on behalf of the local authority, has made a complete, fulsome and obviously well-meant apology for the failings of the local authority in this case. I hope that in due course the carers and the parents will be able to accept that apology, for without the failings of the local authority these proceedings would not, in my judgment, have been necessitated. Whether, and if so, to what extent proceedings are later taken against the local authority is not a matter for me – or certainly not a matter for me at the moment. I do tentatively suggest, however, that if any proceedings against the local authority are taken at a time when I am still a judicial office holder, it would be appropriate for such applications to be heard by me.
6 I said at the outset of these proceedings, and it is worth me repeating now, that the human misery in this court is palpable. From everything that I have read and heard, although I have heard no oral evidence, it seems obvious to me that the applicants and the parents are all thoroughly decent people who all wish the very best for A, with whom this court is concerned.
7 In circumstances which I shall shortly relate, these two decent couples have found themselves pitted against each other in litigation which none of them could have wished for in their worst nightmares. In short, the position can be described as follows, although I shall relate it in more detail shortly. Because the birth parents already had four children between them, and because at the time when it was anticipated that A would be born they had personal difficulties and had briefly separated, they formed the conclusion, at least for a time, that it would be better for them, their children, and most particularly for A, if they were to relinquish her for adoption. It is hard to think of a decision, as a parent, that is more difficult to make, but I am completely persuaded from everything that I have seen and heard that they decided to relinquish A out of love for her and the desire to do the best for her.
…When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that social worker as being for the best, and the local authority put in place proposed adopters from birth. In my judgment, they had a duty to discuss this with the mother, in fact with both parents, in detail, before accepting the position rather than actively encouraging them to go through with the adoption. The Adoption Agencies Regulations 2005, and the Welsh equivalent, pursuant to s.53 of the Adoption and Children Act 2002 mandate the local authority to provide pre-birth counselling to the mother, which would include whether the mother could care for the child with support or whether there were members of the family who could care for her in the short or long term. Following the birth, the social worker must counsel the mother to see if she still wanted to the child to be adopted. At the first statutory review, consideration should be given to whether there still remains a chance that the child will return home. The local authority must do whatever it can to ensure that the child is brought up within her birth family if at all possible. Prospective adopters, who are selected to accept a relinquished baby from hospital, should be informed they will need to be robust because of the possibility that the parents may change their minds.
The child has lived with the prospective adopters since she was 3 hours old, and had recently had her first birthday.
Leading up to the difficulties, around three months after the birth of A
24 On 25 September 2018, the mother met with the guardian to sign the relevant consents to relinquish A, but due to the mother’s reservations the guardian advised the mother not to sign the consents. In my judgment, this event on 25 September 2018 is a critical event. The following day the guardian sent an email, in which she recorded that she was unable to have the consent form signed as it was, and I quote, “Clear that the parents want A to be returned to their care. They feel circumstances have changed since relinquishing.” The guardian wisely advised the parents to seek legal advice. I repeat that this was 25 September 2018, about nine months ago.
25 A contact recording on 5 October 2018 notes, and I quote, “Whilst the mother was cuddling A she whispered to her, ‘I’m going to get you back’, before repeating, ‘Mummy is going to get you back.’” On 8 October 2018, the social worker recorded that the mother said that she felt that giving A away was a mistake and that she was due to see her solicitor on Thursday. There is a great deal more in the guardian’s chronology, but what is abundantly clear is that it was only a short time after the birth that the mother, and then, in due course, supported by the father, showed increased anxiety about her decision and increased reluctance to let A go.
It was clear by this stage that the mother was having significant doubts about A being adopted.
26 It is evident, and Judge Garland-Thomas so found in the care proceedings to which I will shortly refer again, that in October 2018 the mother was informed by a local authority social worker that if she changed her mind an assessment would need to be carried out which would involve the other children. This was as devastating for the mother as it was incorrect. It was devastating because it terrified the mother and, I dare say, the father when she relayed it to him that further local authority involvement with their family would now ensue, with all the risk to the other children that they had been through already, as I’ve recounted above.
27 It is completely evident to me that the birth parents became frightened that an inquiry would now follow into their capacity to care for the four children already at home with them — certainly three of them, one of them I dare say being above the relevant age. The mother was understandably concerned about previous local authority involvement.
28 Judge Garland-Thomas found that by March 2019 both parents had indicated, reluctantly, that they agreed that A should be placed for adoption. Judge Garland-Thomas found, however, that on the way back from court on 3 April 2019, the mother disclosed that she did not agree with the plan and that she wanted A back in her care. It was this comment of the mother’s that persuaded the local authority that they should issue care proceedings. Judge Garland-Thomas found, and it is obvious to me that she was correct in this finding, that the placement of A shortly after her birth as a foster to adopt placement was not one which had any legal foundation. It is accepted that the parents agreed accommodation under s.76 of the 2014 Act, but there was no compliance with other legislative requirements.
The parents withdrew their consent to adoption. (it is not clear as to whether they formally withdrew their consent to section 20 foster care accommodation or were informed that they had the legal right to do this)
The Local Authority issued care proceedings for A. That seems, to me, to be a sledgehammer approach but in the interests of fairness there probably wasn’t any other “legal” mechanism for resolving this. (the Court can make all sorts of useful declarations under an Adoption application, but an adoption application could not be made). I’d like to know more about what attempts were made to resolve matters via conversation and social work and possibly legal advice for the parents, but we just don’t know from this judgment. So if the LA felt that a Court should make the decision as to whether A would go home to parents or stay with the current carers, that was the only legal route for doing so. (The question of whether it was necessary for the Court to make such a decision is a different matter)
I’m also not sure about threshold, and it turns out that my uncertainty was echoed by two Judges.
32 At the first directions hearing within the now issued care proceedings, it was evident that threshold was disputed. The local authority sought to rely on the likelihood of emotional harm and neglect arising from the fact that A was relinquished at birth and there had been no contact between the parents and A since October 2018. Judge Garland-Thomas found herself having to grapple with the relevant date for threshold. It transpired that the local authority had pleaded three different relevant dates. Their initial threshold document pleaded the relevant date was 4 July 2018, being A’s birth date. On behalf of the local authority, this was abandoned by Mr Boothroyd at the hearing before Judge Garland-Thomas and the second threshold document dated 24 May 2019 pleaded the relevant date as 3 April 2019, the date on which the mother requested that A be returned to her care. Later, in submissions, Mr Boothroyd on behalf of the local authority suggested that the only feasible relevant date could be the date on which the mother originally changed her mind, namely about 25 September 2018.
33 Judge Garland-Thomas found that it is clear to her that the only date which could possibly be the relevant date is A’s date of birth, 4 July 2018. She found that the submission that the relevant date is either 3 April 2019 or possibly 25 September 2018 is not sustainable. On each of those dates A remained in local authority care, where she had been since 4 July. The judge found that any date other than 4 July 2018 is therefore an artifice seeking to place some blame on the parents for their change of stance.
I’m not at all convinced that a parent lawfully exercising their statutory right to change their mind about giving a child up for adoption (particularly when papers had not been signed) gives rise to a likelihood of harm to that child attributable to the care given by the parents not being what it would be reasonable for a parent to provide.
36 The judge found, in paragraph 28 of her judgment, that it would be necessary for the local authority to show, on any of the dates proposed, that there is a lack of care being provided by a parent which gives rise to threshold. The judge said that she was satisfied, and she so found, that the local authority cannot establish that A has suffered, or that she is at risk of suffering, significant harm attributable to the parents as at any relevant date. The judgment of Judge Garland-Thomas, therefore, brings the public law care proceedings to an end. The application for a care order has been dismissed and the care proceedings now will formally end today with the handing down of her judgment
There might be a scenario, when the reasons for relinquishing in the first place obviously and clearly give rise to a likelihood of harm if the child is at home with the parents, but just changing their mind isn’t it.
Judge Garland-Thomas, correctly in my judgment, concluded that when the local authority proceeded on the basis of a foster to adopt placement they did not have in place the legal framework to enable them to do so, and care proceedings should have been issued earlier than they were. It was completely clear by at least 25 September 2018 that the parents were equivocating about their consent to adoption. There is a duty on this local authority to support and assist parents in the position that these parents were in, and I have already set out the relevant Adoption Agencies Regulations that apply here in Wales.
38 Instead of providing that support and counselling, the local authority actively encouraged the parents to proceed along the adoption route, and even, albeit implicitly rather than explicitly, allowed the parents to feel that failure to continue to relinquish A for adoption could give rise to an inquiry in relation to the other children.
39 Mr Boothroyd on behalf of the local authority, has referred me to a famous but now somewhat old lecture given by Lord Mackay of Clashfern in1989, when he delivered the Joseph Jackson memorial lecture. It is to be remembered that 1989 is the year of the Children Act, albeit it that did not come into force in 1990 or maybe even 1991. During the course of that lecture, Lord Mackay said this,
“The integrity and independence of the family is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in the law. Accordingly, unless there is evidence that a child is being or is likely to be positively harmed because of a failure in the family, the state, whether in the guise of a local authority or a court, should not interfere.”
40 The lecture is to be found reported in New Law Journal vol 139 at p.505. The quoted paragraph being at p.507.
41 Mr Tillyard in sensitively but, if I may say so, in characteristically bold fashion, criticises the local authority. He lists inter alia the following failings:
42 1. When the mother informed the local authority social worker of her decision to relinquish her unborn child, it was immediately accepted by that local authority to be for the best, and the local authority put in place the proposed adopters from birth.
43 I agree with Mr Tillyard’s submission and so find that they had a duty to discuss this the parents in detail before accepting the position, rather than actively encouraging them to go through with the adoption.
44 2. The local authority should have permitted the mother time to reflect on her decision to relinquish A following the birth, rather than asking her to leave hospital within three hours of A being born.
45 3. The applicants, that is the carers, had not been approved as foster carers, and so A should not have been placed with them from birth.
46 I wish to make it completely clear that in saying this I do not criticise the carers at all. I criticise the local authority.
47 4. Once A was placed with the carers, the local authority took far less interest in the mother’s welfare than they should have done. It took them some three weeks before they even organised contact.
48 5. The local authority was placed on notice by the guardian in September 2018 that the parents’ consent was likely to be in issue.
49 In my judgment, the local authority should have fully investigated this as soon as it became evident to them. That was their clear duty. The local authority told the mother that once she signed the papers for adoption in September or October there would be a final contact session. The mother was not aware, because nobody told her, that she could have requested ongoing contact.
50 It is clear that, had the local authority carried out its statutory duties pursuant to statute and regulation, from at least 26 September 2018, these proceedings would not be happening. It is overwhelmingly likely that had that action been taken last September, as I have said just over nine months ago, the parents would have been rehabilitated with A and the carers, however sadly, tragically and reluctantly, would have conceded this. It is almost beyond belief that we are now some nine months later. Who can possibly blame the carers now for bringing the applications that they do, both within wardship proceedings and for seeking leave to bring the adoption application?
As a side note, the Judge noted that the mother and father, who stood shoulder to shoulder and had absolutely no conflict between them were represented separately. This does seem to have become simply the de facto norm position rather than anyone turning their mind to an actual conflict or the genuine possibility of a conflict. The Judge made remarks which may have wider significance
51 The mother and the father have each been separately represented in these proceedings before me. I questioned the need for this; not out of any sense of criticism, but because it seems to me that they stand together shoulder to shoulder in this application. Of course, as I have recounted above, there was a time when they were separated and that separation appears to have been a significant part, although not the only reason, for the decision to relinquish the baby. I can well understand that that led people to think that they should be separately represented, however, when questioned about this the best answer that I was given as to the reason for separate representation is that this is what normally happens in public law care proceedings.
52 As I have said, I do not intend to and do not criticise either of the birth parents nor any of the legal representatives for the decision for separate representation. I do, however, tentatively suggest that if it is obvious to advocates that two parties to proceedings have identical cases, ambitions and evidence, attention should be given to the possibility of single representation.
Moving on
instead of accepting the facts, the local authority proceeded, as I have said, as if consent was still forthcoming. I am the first to recognise that local authorities work under intense pressure of work and in circumstances where funding has been persistently and repeatedly reduced. The pressure on local authority social workers and lawyers is often intolerable. However, the local authority should not, and cannot, make the mistakes of the kind that have been made by this local authority in this case. I have already used the words “human misery” above, and I repeat those words now in the sense that the human misery caused by the failings of this local authority are almost too much to bear.
55 Moreover, and in any event, the cost in pure monetary terms of these proceedings, and of any likely proceedings that may in due course be brought against the local authority, will far outweigh any possible savings that could have been made by the inadequate attention that was given to this case. It is not my task in the course of this judgment, least of all when I have heard no oral evidence, to blame individuals. Whether this is the failure of one or two individuals in the local authority, or a systemic failure is not something that I can or should comment on in this judgment. I can only hope, however, that there will be a thorough review by those at the top of the legal department of this local authority to consider what failings were made, and how steps can be put in place to make sure that they can never be repeated.
56 It is clear to me that the carers of A are thoroughly decent people, who have thought of her arrival into their lives as the fulfilment of a dream. To have that dream taken away from them, as these proceedings invite, is to heap upon decent people misery of a kind that is completely unacceptable.
57 For the birth parents who have pleaded for the return of their child for many months, they have had to endure many months of misery, litigation, and what can probably only be described as hell. It is, if I may say so, a tribute to the birth parents and to the carers that they have sat in court in close proximity and they continue to offer each other support. I can only express the hope that one day A will realise that she has not two, but four, wonderful adults in her life.
The carers were asking the Court to deem that they had the right to make an adoption application, or failing that, to grant them leave to make an adoption application. That was the only legal route they had, if they wanted A to remain with them. The Court was against that, without criticising them for pursuing it.
Mr Momtaz properly recognises that if A was placed with the carers as foster carers rather than prospective adopters, as I find to be the case and he has properly conceded, then he must apply for leave for them to make an adoption application. He contends that they should be given leave. In para.30 of his first skeleton argument he identifies the correct principles as follows:
- The welfare of the child was a relevant, but not the paramount, consideration.
- Another relevant consideration is whether the proposed application has a real prospect of success.
- He refers me to the judgment of Wilson, LJ, as he was, who indicated his view that the requisite analysis of prospects of success will almost always included the requisite analysis of the welfare of the child.
74 However, I am clear that this does not permit me, and still less does it encourage me, to draw up some sort of balance sheet between the competing debits and credits of these two decent couples.
75 It is of course the case that A has bonded with her carers, who, as I have repeatedly said, have provided her with an unquestionably good level of love and care. Within the context of her own young world, I have no doubt that A regards the carers as her parents. Mr Tillyard submits, and I accept, that I have to weigh this against the rest of A’s life.
76 What is the right of this court to terminate A’s right to family life with her family – by which I mean her birth parents and siblings? The right of the state to interfere in A’s young life does not, in my judgment, exist. Judge Garland-Thomas has dismissed the care proceedings and there are no longer any public law proceedings on foot. The carers, as I have said, are temporary foster parents. So to describe them will appear to them, I know, to be the deepest of insults. I do not describe them in this way in any pejorative or critical sense, I am merely using the language of the statute to define the legal position: they are foster carers, and the birth parents are the birth parents.
77 Mr Momtaz concluded his excellent written submissions with a short but, I am certain, correct proposition that the applicants, the carers, only want what is best for A. He then says that they want the court to be able to make an informed and balanced decision as to her welfare. The fatal flaw with Mr Momtaz’s submissions, in my judgment, is that I do not get to that welfare stage.
78 Mr Momtaz asks why A should be introduced to the care of her biological parents. In my judgment this is the wrong question. The correct question is why A should be prevented from being in the care of her biological parents, when this is precisely what her biological parents want. I do not for a second question the proposition that what the carers want is what is best for A. The phrase “what is best for” is emotive and implies all sorts of subjective tests. I am driven to make my conclusions based on the law. The law is that adoption is a process of last resort unless consent from the parents is forthcoming. Everyone in this case recognises that the consent of the parents is not forthcoming now, if it ever was. There is no material evidence on which I could base a finding that the consent of the parents should be dispensed with. My task is to find whether the carers have a reasonable prospect of success in their adoption application.
79 With the care proceedings having been dismissed, there is no basis on which I could find that the birth parents are other than, to use the language of family lawyers, good enough parents
And the application was dismissed, meaning that plans were put in place for A to return to the care of her parents
81 I am driven to the conclusion that the carers have no reasonable prospect of success in their adoption application. Indeed, I am driven to the conclusion that it is bound to fail. Accordingly, there is no basis on which I can give them permission to make the application.
82 This leads me to the most painful and difficult debate as to how now to reintegrate A into her birth family. With exceptional kindness, love and understanding, the carers have offered, even in the face of the prospect of losing their application, to do all that they can to help to integrate A into her birth family should they lose this application, as it is evident to them that they now have. Should they change their mind in relation to this, nobody, least of all me, would criticise them. If, however, after a period of contemplation following this judgment, they feel able to continue in this offer, then I know that the birth parents and this court would be grateful to them.
83 It may even be, and I express this very sincere hope, that they can play a part in A’s life as she grows from the toddler that she now is into the girl, and the woman, that she will become. That is, of course, not a matter for this court but a matter for the four individuals who have patiently listened to this case for some three days.
84 In my experience as a judge in the Family Division I have rarely, if ever, seen such decent accommodation by individuals, of the horrible circumstances in which they all find themselves, and I end where I started by thanking all four of them, and express the hope that the goodwill seen by me in this court will continue, not just in the days and weeks to come, but in the years and decades to come.
85 Accordingly, I therefore dismiss the application for leave to bring an adoption application, and I will dismiss the wardship proceedings.
suesspiciousminds 