Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended

Thus spake Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) (15 July 2015).

So, it’s back to the drawing board for the Lord Chancellor, who has been frenetically drafting both revised regulations in respect of s10 LASPO exceptional legal aid and his grounds of appeal from Collins J’s decision that such revision was necessary, so he can get back to dipping his toes in the paddling pool (or whatever it is that parliamentarians do in the summer hols). The immediate redrafting of the regulations does not give an impression of supreme confidence in the merits of the appeal, but no doubt this is simply ministerial prudence, although possibly the Lord Chancellor was only able to secure public funding for the appeal through the issue of the regulations… ;-P

The upshot is that, for the time being at least, the Lord Chancellor has loosened the overtight belt so we can breathe – at least until the appeal is heard the merits test has been relaxed. See here on the Legal Aid Handbook site.

Woot woot!

And watch this space…

Contested adoption – Return of a child to parents

 

Re W (Adoption- Reunification) [2015] EWHC 2039 (Fam) (22 July 2015) is an extraordinary decision of Ms Justice Russell. Extraordinary for a number of reasons.

Firstly, because it is an example of a child aged 2 1/2 being returned to the care of a parent long after placement for adoption.

The judge at first instance, a District Judge, had made care and placement orders in respect of the youngest of four children, whilst leaving the elder three children in the care of their father under supervision orders. The issue (condensed greatly) had been the risk arising from the mother’s fluctuating mental health and the father’s ability to prioritise the needs of the children for protection in that regard over his relationship with the mother. Some while after placement with them, the adopters with whom the child had been placed made their adoption application. The father sought permission to oppose the adoption application, which was granted (on appeal). He also sought permission to appeal the original orders (out of time). The court of appeal gave permission and allowed the appeal (in short because it fell way short of the analysis required as set out in B-S), and the care and placement orders were set aside (see Re H (Children) [2015] EWCA Civ 583 (11 June 2015)). By the time the adoption application came on the child had been living with the prospective adopters for some 16 months – give or take for half of her little life.

The awful, difficult issue the judge had to decide is aptly set out in this passage of the judgment :

  1. In this case I am considering two options only, either W returns home or, if nothing else will do she remains with the As and is adopted by them. I have already said that the care she has received from Mr and Mrs A has been of a high standard and it is accepted that W is settled with them, thriving and a happy and healthy little girl. The father has been fulsome in his praise for the way they have looked after his daughter. Against this I must balance in the light of the jurisprudence I have set out above that by the time the care proceedings were concluded the father and the mother had separated and that the decision for W to remain in state care with a plan for adoption was at best finely balanced. 
  2. The fact that the orders made in September 2013 were set aside on appeal further underlines the inherent weaknesses of that primary decision which led to W being placed for adoption, for it is highly likely that had the principles set out by the Supreme Court in Re B, applied in B-S and the Court of Appeal cases preceding and subsequent to B-S been followed, with the adequate support that should have been put in place by the local authority, W would have been placed at home with her brothers and sister in their father’s care. The criticism of the local authority’s evidence and case made by the district judge in his judgment, particularly their focus on the need for the father to change of course meant that no support package was put before the court; as there should have been had the court and the local authority paid heed to Re B and the words of Lord Neuberger at [105]; these words and similar references to local authority report in Re B were, as can been seen above, followed by the President in B-S to the decisions of the Court of Appeal which preceded and followed that particular case.

She goes on to set out the risks associated with either course of action. The court was ultimately assisted greatly by the two experts in the case – a clinical psychologist (who had assessed all four siblings) and an independent social worker. What swung it for the psychologist, who ultimately recommended return to dad, can be summarised with this quote from his oral evidence :

I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask…[on balance] I think she returns to her father.

The judge ultimately agreed with that. The potential long term fallout of leaving her where she, couple with the strong presumption in favour of biological family “last resort”, was probably what swung it. Interestingly, there was no discussion in the judgment of the article 8 rights of the child and adoptive parents in respect of the family life that had undoubtedly been established in the period since placement – but it may well be that such an approach would have taken the court little further forward in deciding the matter given the opposing rights to family life with (and of) both parents and full siblings.

So, this is not your run of the mill case. It is uncommon for care and placement orders to be set aside on appeal. It is rare for parents to be given leave to oppose an adoption application and thus for adoption applications to be opposed at all. It is unheard of for the adoption order to be refused and for the child to be returned to the care of the parents whose parenting had been the source of concern in the first place.

In December last year Holman J refused an adoption order in a case where the father had only been identified after the making of the placement order and placement of the child. By the time of the hearing the child had been with his adoptive family for over a year. In that case the child was placed with paternal family members, which had the advantage of being not only biologically connected but also ethnically / culturally appropriate. But that was a case of a court keeping a child with extended family who were not said to have been the source of harm / risk of harm to the child. See A and B v Rotherham MBC [2014] EWFC 47 Fam.

Other than that case there are really very few examples of this sort of turning of the tables. Broadly, this is the culmination I think of a trend for rigour that was kick-started by Re B and B-S back in 2013, but hitherto those effects have been most often seen in the form of refusals of applications for placement orders (and a reduction in the numbers sought), and of an increase in grants of permission to oppose adoption applications and of revocations of placement applications. Although a number have passed the permission hurdle they have often failed in the substantive matter because of the risk and disruption associated with a return home. It has taken until now for us to see the fullest effects – the sending home of the all-but-adopted, and the removal of a child from the carers who have to all intents and purposes been his parents for many months. It will remain rare that children are returned to biological parents, but that will give hope to many more parents. The rarity of return will be little comfort to adoptive parents who are ready to invest so much into a child that they will love as much as any biological parent.

But this judgment is also extraordinary for another reason. Russell J is highly – highly – critical of the local authority. For relentless “case-building”, and insistence on reliance on a position and evidence that had been undermined by the successful appeal against the orders made. It is a very strongly worded judgment.

The social work evidence comprised “what can only be described as psychobabble…In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make.” It was at odds with the expert evidence and unsupported by evidence from those on the ground. Further, the judge said “both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case.” Oh dear, this is not going well for the LA.

It gets worse. The LA were responsible it appears for making a “misleading, damaging and inaccurate referral” to the Local Authority Designated [Safeguarding] Officer (LADO), which resulted in the father losing his employment. The upshot of all this was that “In the light of their unprofessional behaviour and their negative view of him both as a father and as a individual as expressed in their evidence there can be little wonder if the father finds it hard to trust the local authority and to work with them from time to time. It is largely their responsibility to repair their working relationship with him”.

The Guardian was next in line, and if anything it is worse for him. In the original proceedings he filed “a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family”. The fact that this report was filed only just the wrong side of Re B-S provided little cover, but I anticipate the court’s sympathy was eroded by the fact that it was apparent he had not fully embraced the import of Re B-S by the time of the contested adoption application since it was said that “the lack of any real child-centred analysis within these proceedings is inexcusable” (my emphasis).

I think it is in fact worth setting out the criticism of the Guardian in full. Sadly, I do not think that it is an isolated instance of failure (although I have never seen quite such stinging criticism as this):

  1. The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation. 
  2. I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.
  3. Richard Madge had been the guardian for all four children in the public law proceedings. Yet he failed to put forward the case for W’s siblings who all want her to come home. He did not visit W’s mother or seek her views during the course of these proceedings and – having visited W’s siblings in December 2014 – did not visit them again or ask for their views in advance of the hearing in May 2015. This guardian has been involved in the proceedings from their outset in December 2012. I accept the submissions of counsel for the father and for the mother that it was immediately apparent from his evidence that the guardian has failed to understand the requirement for a holistic analysis of the evidence or to engage with the possibility of W returning to her family in an appropriately open minded manner. This was evident from both his reports and from his oral evidence. His explanation that the impact of Re B and subsequent Court of Appeal cases including Re R, Re G and Re S had not been appreciated at the time of the final hearing in September 2013 was not acceptable. His counsel’s submission that the court had pre-determined the case when he was reminded of the requirement for a proper analysis was inapposite and defensive. 
  4. In opposing the father’s application to bring his appeal against the care and placement order out of time before His Honour Judge Farquhar the guardian and W’s legal representatives set to prioritise a resolution in favour of adoption over any investigation of reunification and the rectification of an obvious injustice that W had suffered. The views of her siblings were not put before the court by the guardian at the final hearing; they should have been. In relation to opposing the father’s application for leave in circumstances where he had so clearly demonstrated substantial and positive changes the guardian was so closely aligned with the local authority’s position that he evidently felt unable to support a full assessment of the potential for rehabilitation.

Yes, I’m wincing too.

Finally, although related, the judgment raises another point. There is a separate short passage at the end of the judgment, headed “Sibling relationships and the children’s wishes and feelings”. It runs thus :

  1. It is most regrettable that the three older children were unrepresented during these proceedings as their views were not put before the court. While they would not be parties to the proceedings under the provisions of the FPR 2010 or the relevant legislation their Art 8 ECHR rights are engaged and the court should have had regard to their wishes and feelings under s 1 (4) (f) (iii) of the ACA2002. 
  2. As was said by the Court of Appeal in T (Children) [2014] EWCA Civ 1369, albeit obiter, it is important for children to know that any applications which may lead to them or their siblings remaining with alternative carers or returning to the care of their family are properly argued on their behalf. There can be little doubt that the eldest child in particular wants W to return home and would have had a view on contact should the court have come to consider contact for W with her family if she remained in the adoptive placement. Their wishes in respect of this or any other matter were just not put to this court. In the case of Mabon v Mabon [2005] EWCA Civ 634 the Court of Appeal considered some ten years ago the need for children and young people to know their wishes are transmitted to the court and, in the words of Lord Justice Wall in Mabon, “to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented to the judge and their perspective fully advanced to the judge.”
  3. At a time when there is increasing awareness of the dissatisfaction of some young people about lack of access to the courts considering matters directly concerning them these children should have had their wishes and feeling put before the court, at the very least; and as her siblings they are relatives of W the court should have had regard to those wishes and feelings as it is obliged to do so by statute (s1 ACA 2002). In the absence of direct representations from X, Y and Z put to me on their behalf I have assumed that they would want their sister and youngest sibling to live at home with them and their father.

I don’t think that is a further dig at the Guardian, who had been but was not now the Guardian for the older siblings. It is a pointed observation of the fact that in such cases the views of children are simply not placed before the court – I have occasionally suggested in cases that the article 8 rights of a non-subject full or half-sibling are engaged in connection with the proceedings before the court and that they should be represented by next friend, to inevitable Paddington Bear hard stares. I have never persuaded anyone. But perhaps I will wave this about next time.

The judgment of Russell J is on appeal, and the order stayed, so little W remains with the adoptive family for the time being. It must be agonising for all concerned. It is expected to be heard in August. I don’t know if it is the LA or the Guardian [edit 4 Aug : or the adopters] appealing, or possibly [both all]. They have bBoth [the LA and Guardian] had a right old pasting, and one can only speculate about the possible bases of appeal.