Clear now?

The Telegraph this morning runs a “Top Family Judge” story :”Social workers must not ‘shy away’ from adoption – top family judge. Sir James Munby seeks to head off collapse in adoption placements warning that children could be put at risk by new obsession with keeping them with relatives ‘at all costs’”

in which it lays out its precis of B-S and Re R.

It says (amongst other things)

“Sir James Munby, President of the Family Division, said children’s welfare was being put at risk by a new obsession with keeping them within their wider family circle “at all costs” if their parents could not care for them.”

Wrong. He does not say children’s welfare is being put at risk. He does not say there is an obsession. He simply says that Re B and B-S should not be interpreted to mean that family placements should be preferred to adoption at all costs.

“His comments will be seen as much needed clarification of a high-profile judgment he issued in September last year pointing to concerns about the effect of the drive to speed up adoption initiated by Michael Gove, the former Education Secretary.”

The high profile judgment (B-S) made no reference to the Gove reforms, only to social work practice and the need for rigour.

It goes on :”Adoption groups said it threw the system into paralysis as social workers scrambled to carry out extra assessments on children and explore alternatives believing adoption was now only for extreme cases. It threw the Government’s drive to speed up adoption into crisis and forced the Coalition’s adoption tsar, Sir Martin Narey, the former chief executive of Barnardo’s, to issue emergency guidance to social services departments insisting that the law had not changed.”

Actually, adoption speed is up. It is the number of adoptions that is likely to drop in the medium term, although at present it is still up. And whilst it is correct to report that adoption groups say the impact of B-S has been to [wrongly] reduce the number of applications, this is at present perception not proven. It looks as if B-S has probably affected the number of cases where social workers are putting children forward for adoption for sure – but the judgment in B-S was indicating that social work practice was sloppy and that adoption best interest decisions were not being properly thought through. It is this that B-S was designed to tackle and Re R does not depart from that. If B-S was right about sloppy practice we would expect a drop in the number of applications, as realistic and proper alternatives were being properly considered where in the past they were not. It is perhaps surprising that an improvement in practice would result in a drop of as much as c50% and I accept this perhaps reflects some degree of nervousness in when it is now proper to put a child forward for adoption.

Finally, “Sir James also insisted that the law had not changed as a result of the judgment and said it was time to lay to rest “myths and misconceptions” which had sprung up around it.”

Well. Firstly, in Re R the court is given some “anecdote” and “impressionistic” information by an advocate. That in my book is not evidence. And it does not entirely match my experience. I’ve heard many of the anecdotes tried by advocates – but they don’t get far. The court said “We are in no position to evaluate either the prevalence or the validity of such concerns in terms of actual practice “on the ground”, but they plainly need to be addressed, for they are all founded on myths and misconceptions which need to be run to ground and laid to rest”.

So. The court does not say these misconceptions are endemic. It does not say the concerns are valid. It says only that IF these things are abroad they should not be. From my perspective (which is, unlike the Court of Appeal “on the ground”) most people “get” B-S.

Let’s not forget it is these same impressions and un-evidenced assertions that led to the Myth Buster. They are not what B-S says. They are not what B-S ever said. And by and large they are not what people think it says.

It may be that some are misinterpreting B-S. If so I’m glad that this judgment will clear things up. I don’t think it says anything I didn’t already think B-S told us (apart from possibly the bit about ruling out parents at an interim stage). What irks me (apart from I confess a sense of professional affront at the implicit criticism of those of us on the ground for all being muppets) is the tendency to see the shifts in adoption stats as entirely a bad thing (see the comments of Adoption UK at the foot of the article for example), whereas in fact they may be partly at least a correct result of a proper call for rigour. That is to say that rather than being an “emergency” or a “failure” they may represent an improvement in good practice. To the extent that LAs are being or were being over cautious and feeling they could not go for adoption in appropriate cases that should now abate, and it will be interesting to see if the proportion of placement applications reverts to its pre-B-S level or if it reverts to a lower level overall.

I wish we could have a more nuanced and less politicised discussion and analysis of adoption trends and practice without the press and interested parties interpreting things in an over simplified way, and without the pendulum swinging ever more wildly from one extreme to the other.

This particular article does what the press often do which is to politicise a judgment. This judgment is quite carefully not commenting on government policy or parliament’s legislative prerogative. It is seeking to apply the law and to give guidance upon its correct application. The only aspect of the judgment which could be construed as political is the last paragraph which is a rebuttal of the strong implication made by Martin Narey that the Myth Buster had been endorsed by the President (in itself an attempt to politicise adoption and the President). From the headline one would imagine that the President of the Family Division was some sort of executive agent of a Government Ministry.

Sorry, what’s that you say?

It was a mere blink of an eye since we were treated to the Adoption Myth Buster, wheeled out at a moment when it was said adoption statistics were through the floor. And it was all the fault of Re B-S. Or people misinterpreting B-S. Or people not being sufficiently, unequivocally, evangelical about adoption.

But knock me down with a feather what is this I see reported? [link added: http://www.familylawweek.co.uk/site.aspx?i=ed137824] Adoption is not really down after all? In fact it seems to be rising? Wait, what? Adoptions are up 26% on last year and are now at their highest highest since 1992.

Now I grant you, the stats cited at the point of publication of the myth buster did show a recent dip in the period from Sep 13 – Jun 14 (so covering a period slightly more current than the stats above). But whilst the blip is downwards, the trend is an upward incline. Perhaps a trend will emerge, but in light of the recent restatements of what Re B-S doesn’t say (by which I mean the judicial restatements of what it doesn’t say), and in particular in light of Re R (A Child) [2014] EWCA Civ 1625, released today I doubt any trend that does emerge will be down to misinterpretations of B-S.

The astute amongst you will notice the final paragraph in that judgment, wherein the President takes the opportunity to observe that :

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

I wouldn’t like to say I told you so…But I actually did.

A blip in more than one sense then.

Private Law – one swing and a roundabout

The downturn in private law applications is definitely starting to look like a trend. Another month of figures lower than the same time last year (9%). And take a look at the table here [missing link added] – there is clear blue water between that red line (this year) and any other year shown.

On the plus side, the Gudanaviciene JR has been upheld. This was a batch of immigration cases, but the key point for our purposes is that the Lord Chancellor’s guidance on s10 LASPO has been held to be unlawful. As reported in the Telegraph, the Ministry remains unrepentant, saying through a spokesperson that “We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.”