Adoption And Placement Orders In 2021: A Crucial Session
Good morning and welcome everybody. I'm softer Mahmoud, I'm very pleased to welcome you to today's session through Data law. This is the two part of session where I'm going to be going through with you. Matters related to adoption, placement orders including revocation and defended applications for adoption. So this session is split up into two parts today. Of course I'm looking at session one and then there's going to be a second session where I continue with some other themes and quite a significant area. Of course a lot is going on in this field Currently there's been a lot of recent judgments and my aim is to bring you up to speed with some of the recent developments as well as some of the key principles also. So I'll be going through some of the elements running adoption agencies regulations bringing up to speed with how those work had I was fit in. I'll be looking at placement applications, leave to revolt, placement orders and also leave to oppose and also defending adoption applications. We'll have a look at some of the leading authorities on that and I'll be taking you through some of the case law developments such as for example, there was a case of Re y leave proposed adoption of 20-2020 which is really used for case in particular. Well, look at that and some of its implications and I also want to try and dispute dispute some other dispel some of myths surrounding how matters are progressed when it comes to local authority procedures and that's where I'm going to try and spend some time going through with you at some of the matters related to adoption panels and household that all fits in together as you'll appreciate more more childcare practitioners working particularly in childcare cases are having to deal with more and more matters relating to adoption. Leave to evoke leave to the polls and therefore this is an area which of course is fundamental for any child care practitioner. Right. I'll put the copyright acknowledgment here for you acknowledging crown copyright. There's a fair bit of case law and statutory provisions here and also acknowledging defeat As corporate author. And we're looking at the laws of October 2021. Right. So the first thing I wanted to start off with is this concept of parallel planning or twin trap planning as some lawyers refer to it now as you know in a typical care case will be attending the case management hearing and there will often be directions made for uh progress mint of assessments and filing of documentation there on and typically when I've represented a local authority for example and I'm putting the directions together, what would then be doing is time tabling. Not just dates for when assessments around whether it's parenting assessments of parents but whether it's also other assessments of say grandparents, uncles, aunts in the fourth special gunship assessments, fostering assessments, assessments in the form of Fostering two format, as many of you would know and the filing of that and then referring of the matter to fostering panel if needs be. But we also have to be thinking about alternative options alongside that. And that's where adoption comes in. So this is where I would be discussing with the social worker whether at this stage they are after view as to whether adoption is something that they need to at least contemplate as a possibility as a fallback. Should it be that rehabilitation to parents or placement, family and friends is not a viable option? And that's where we mustn't be looking at things consecutively. We need to be doing things concurrently and hence the concept of parallel planning and there's a lot of case law which requires us to do this. This isn't something that local authorities are devised and put in place themselves. The case law supports this and in fact the regulations, the adoption agencies rates which are take you through shortly required it. So there's a case of D N K D and K K. Plan to interact planning back in 1999 for example. And let justice based wealth for example, specifically referred to the concept of parallel planning, which is even when you're working towards rehabilitation, even where one is assessing say parents, we must also bear in mind that we need to look at alternative plans. Should that plan not be successful and therefore the concept of Hello planning is there and therefore what I would typically do is when I'm preparing to directions. I've been putting in their directions along the side along the lines that uh normally uh alongside the final evidence, final evidence of the local authority, final statements, final care plan. I would often also be putting in there something along the lines. That should it be the case that the local authority wish to pursue adoption for the child. And they are for example seeking a placement order, then the court expects any such placement application to be filed with the court by no later than and then normally we put a date on that at which they will be filing the placement application and then you have consequential directions there after such as upon the lodging of any placement application, the Guardian of the cave ceilings shall also be the guardian in the proposed placement proceedings. You shouldn't be putting a direction in there that the solicitor in the cape ceiling is also the solicitor in the placement proceedings because that's actually a decision for the Guardian. And it's only when there isn't a garden appointed which really just should be. But even if if there isn't a garden appointed the placement scenes, it's only then that the court should not be appointing the solicitor Then under the option uh provisions under part 14 of the family procedures, if the court does decide to list a matter for a directions, hearing once and replacement application is launched, then they are required to do so within 28 days. And often what you find is if the placement application is lodged on time and at the time at which it was stipulated and expected, then often you'll find that it may well be determined at the same time as the higher h was certainly the final hearing in relation to the care proceedings. That's what tends to happen. And the other key provision is subject to some limited exceptions. Since September 2012, the Charles case is now goes directly to the agency decision maker. The ADM as we refer to him or her as opposed to going to adoption panel first to seek your recommendation two pursue a plan for adoption. There are exceptions that principally the main exception as of now is where if the child is relinquished for adoption. So I'll go through that in a bit more detail which is surely Okay, so a couple of things to bear in mind with parallel planning now tied in with that. Then, as I just mentioned, We need to have an understanding of the adoption agencies regulations and these regulations first came into place in 2005 following the adoption and Children in 2002. And in England they are simply the adoption agencies rags of 2005 in Wales is the adoption agencies Wales Amendment Regs. And so the adoption agencies Wales regulations of 2005 and then there were subsequent welsh regulations as well. There were the corresponding ones in 2012 in particular And uh the respective regulations, both in England and Wales came into effect on 13 December 2005. And then there were the amendments, particularly in so far as the changes to the form a necessity of adoption panel subsequently and then the changes to when panel is going to be detectives make a recommendation relation to Children. So let's have a discussion about panel. So Currently then what is, what is the role of panel? Well, like you're saying 2012 things did in fact change quite significantly. So that prior to that if I just take you back to before September 2012, what used to happen is this if you've got a child who say we were in court proceedings on and the local authorities were parallel planning which has just mentioned the need to be doing and say the assessments of family and friends were negative, rehabilitation was not considered viable. Then often what would happen is the local authority would then have a, I looked hard review pursuant to the regulations at that stage. Now contained within the care planning placement in case review regulations In England of 2010 in Wales of 2015. and under regulation 32 for example, there would be a looked after a view where the purpose of that is to consider the care plan at that stage and unless it's impactful do so if there is a significant or proposed significant changes the care plan and it should be first considered at this looked after Children's of you. So like I saved assessments of the parents was a negative and also a family members and local authority. When I'm looking at single track plan for adoption, then there would be referring the Charles case who looked after a few to consider that change in plan. In addition to that there needs to be a permanency medical and adoption medical journal the child making sure it's no more than six months old. And this is where The social worker would get this paperwork together before September 2012 minutes of the lack of you, of the outcome. The purpose of medical I wouldn't need to have been done. The social worker would have got together to cpr the child's permanent report in England. The written report has referred to in Wales which would look at later and also legal advice would be provided to panel And there would also be a medical like I don't have the child as well as experts reports that were done in the cape ceilings for example would be advised that would be available to panel. So there was a lot of documentation that would be made available in an panel which would consist of a number of people sitting there. Well then consider those papers and decide whether or not to recommend as to whether adoption was suitable for this child and if so then the recommendation would then go to the ADM the agency decision maker and he or she would then determine whether or not to ratify that recommendation by panel. Now the difference that the changes in September 2012 were that that part of panel E making a recommendation as to whether a child is suitable to be placed for adoption or not. Was in fact taken away from a doctor in panel because it was felt that there was delay that was being caused because firstly the Charles case was going to adoption panel to enter the admin and finally the application has been lodged and of course the judge was your final arbiter so therefore there were too many checks and balances there which it was felt was causing delay. Um Those situations where parents relinquish their Children for adoption and I'll talk about that lecture as well. Those cases still need to go to adoption penalty, seek that recommendation and panel normally consists of at least five people certainly of at least one person who needs to be independent of the local authority deserve. There's going to be the medical advisor. Their panel, there's going to be the agency decision making is going to be a social worker and other senior managers. Okay so there's a number of people there who will be making recommendations. There are other roles of panels of course there are there such as panel will recommend as to whether somebody is suitable to be per se approved as a potential adopter. So if I want to adopt for example I would have to go through a very thorough adoption assessment and in my assessment would then go to panel to see if they would recommend me being a in principle adopter. And panels also fulfill a very significant role in sitting is what's called a matching panel where they will be looking too much that child with a prospective adopter and then that's where they will be sitting as a matching or linking panel. So some of you may have heard that expression. Okay, so the key thing is to bear in mind there now as I mentioned, we need to be familiar with the child's permanent report Under Regulation 17 of the adoption agencies regulations of 2005. The equivalent in Wales is the Regulation 17 also of the Adopctions Agencies Wales Regulations for 2005 except in Wales. This is referred to as the written report and the adoption agency that must prepare this report for the child and like say this would then be referred to in appropriate cases to adoption panel and in appropriate cases. Otherwise we referred directly to the agency decision maker. So what does the report actually contains? Well, it's a very detailed report and it actually sets out a lot of information surrounding in particular. Yeah. Uh the position surrounding what assessments have been done of the of the family and friends, what their background is their education and health. The position of the child in particular. Uh the history of their education. Any concerns as to the child's uh medical position, psychiatric psychological position. And also it sets out specifically what assessments have been done and what the outcome of those are and the child's journey to to where we are at the moment. So why has the local authority come to the position that they have in that they are now looking at seeking adoption? So what other uh options have they considered? And this is where effectively a re bs analysis is being done because one is looking at all the options or the realistic options that the local authority is considered. And then in in really deciding whether or not adoption is in the child's best interests or not. Okay. It's a very thorough report and it's one that a social worker needs to prepare and then provides to either panel or adoption. ADM as the case may be right. What I'm not going to be doing then he's the one to spend some time going through the the key principles surrounding adoption and that will then help us to get a better understanding of placement orders and adoption orders and particularly uh revocation of placement orders and uh the defending of adoption orders. So some of the key changes you'll be familiar with came into effect as a result of the adoption of Children Act of 2002. Most of which came into effect at the end of 2005 30s or December 2005 days came into effect. And what this act did is it made the welfare of the child when it came to decisions related to adoption court's paramount consideration. So the welfare of a child became the court's paramount consideration. It no longer was the first consideration. So therefore this very much tied this in with the parliament and some principle under the Children active 89. Some of you may remember and know when I first started in the early 90s we used to have freeing orders and those were the predecessors to placement orders. So what used to happen is I used to go to court. I used to if I was for a local authority I would invite the judge to make the care order. But the care order didn't give the local authority the permission, the authorization that day required to place a child for adoption. We needed to obtain parental agreement. And if that wasn't forthcoming then one would be looking to apply ordinarily for a freeing order which by its very nature by determined that the child is freed for adoption. And the big difference between freeing orders and placement tortoises upon the making of any freeing order. The effect of it was at the time that it actually took over the at the care water. So actually the care order was replaced by firing order, which was made. And secondly, the parents and any other persons had parental responsibility, lost their parental responsibility upon the making of the fring order. Now, as you can see, that's very different replacement orders nowadays because when a placement orders made under section 21 of your adoption Children at 2002, you'll be aware that the care order is not, it doesn't end. A care order has no legal effect. Whilst there is a placement order in effect, it has no legal effect. It sits in a balance basically. And if and when the placement order is for example, revolt in the care order is reinstated. But that's not used to happen. That wasn't what used to happen with fring orders. Having said that one friend orders were coming to an end some years ago, then there were these transitional arrangements which did allow that provision to be had. But the other big difference, as I've just said is like say, parents lost and every other persons lost their parental responsibility at the point at which a friend order was made, which meant that when it then came to the charming uh when it came to be in an adoption application, large body prospective adopters, then the only responds to that of course were the adoption agency, not the parents would pr because they no longer had pr for a child. And that's why once and if a friend order was made any subsequent adoption application was not going to be contested because the only response to that, of course we're going to be the the local authority. So you can see things were very different under the old adoption Act of 76. Before that was then Taken over by these 2002 Act. Part of the reason why freeing orders disappeared was because to get a friend called and Section 18 of the Act, The local authority needed to satisfy the court that they were confident that they were going to be able to place a child within 12 months of getting the order. Now that as you know, is no longer a requirement under the placement regime, but there is an expectation to place as as soon as as and of course the corny to be satisfied our adoption is in the child's best interests on the placement regime. But in the old Fringe order regime, if the charter wasn't placed within 12 months, then there was the Expectation to notify the parents are less. They signed a form to say that no longer wish to be informed and then that left the door open for the parent. For example, in this section 1990 76 Act to apply for verification of the fringe order. Indeed, the local authority could apply as well if they wanted to normally should encourage jurisdiction moved under section 20. But sadly sometimes that doesn't happen and these Children were therefore left in a state of really uncertainty. There was subject to freeing orders. The firing orders were not being a discharged or revolt or ended. And these Children were therefore left in almost a legal limbo where there were neither being placed for adoption or being placed in state foster care or otherwise. And it was felt that was rather unsatisfactory and inappropriate way of really setting out the chance future. So hence the concept of placement orders came in and like I said, these do not extinguish the pr of birth parents at the point of making them as you know, PR will only be extinguished at the point at which any placement orders saw any adoption order is made if indeed it is also what this acted. It changed a legal test for dispensing with consent. The old adoption acts of 76 was rather than satisfactory because it used to refer to the tests under some of you remember, under uh the provisions that we had, one has to show that the parent was for example, unreasonably withholding their agreement or they were persistently failing to exercise their pr. So it was felt that the test was somewhat unfair. Now, as you know, the test is principally under section 50- one a. and one b. We tend to use section 50 to 1 be more so of the adoption of Children at two 1002. Which is that the welfare of a child is such that the consensual parents should be dispensed, It's based on the welfare as opposed to blaming the parent by saying that they are being unreasonable or they are persistently failed to discharge their pr also, the fact brought in the concept of advance consent. This is really important. This is under section 20 of the adoption of Children Act of 2002. So let's say you have got a mother for example who has had a baby who doesn't feel that she's in a position to be able to look after that child. Uh and she doesn't want her father to know she doesn't want the other family members to know about this on her side of family and on the side of a father for example, this is where not only can she consent to Her child being placed for adoption in the section 19 of the act by giving the consent of Kafka's cafta's camera in the uh capacity as a reporting officer. But also she can go ahead and provide an advance Consent i. e. under section 20 whereby she's also consenting to a child actually been placed for adoption as well. So that concept was protein as a result of this act. This act also brought in the concept of special kind supported as you know, it is a very very significant orders which often are made in both private and public law proceedings and the act also expanded the potential applicants for adoption. Previously single persons could adopt. But if you were a couple, you had to be married this act and change that to enable same sex couples to adopt as well as persons who are cohabiting and other persons who were in an enduring family relationship in that regard, who were uh satisfying the criteria there. Case you can see this act made quite an impact in so far as many of these aspects there. Now as I mentioned welfare a child and became the court's paramount consideration And therefore the act very much brought the principles related to adoption in line with the Children act in that regard. And we need to appreciate that when we're dealing with plans for adoption, the child's welfare Is not just until they are 18. Uh it's got to be throughout their life because as you know, adoption orders do not. And as such at 18, once a person is adopted, they are and remain an adopted person for life unless that adoption order is exceptionally brought to an end. So when judges are deciding whether or not to endorse a plan for adoption, they have to be satisfied that this isn't just until they I turned to adulthood. But is it right order for the rest of their life. There is a delay principle or no delay principle in a section 13. So delay as you know, Canon is often for judicial to Charles welfare and therefore when it comes to matters relating to adoption, it works in the same way. So both the court and the adoption agency need to ensure that delay is minimized and that's why when we're dealing with Replacement applications for example will often ensure that dogs are lodged alongside the logic of the final evidence and care plan by the local authority so that we can try and conclude the placement proceedings within 26 weeks as well if possible. But of course each case it's on its own facts Then he so far as the welfare principle is concerned, this is very similar to the welfare principle under the Children Act of 89 but there are some very stark differences as well. So this is under section 14 of the Adopctions of Children Act of 2002. So it's contained within that and until recently it provided various aspects which I'm going to go through with you. But there have been some changes recently. So first and foremost somebody principles which you'll be familiar with are very similar to what we have under the Children Act of 89. So one has to take into account the ascertainable wishing things of the child considered in light of the agent understandings of course that is a feature which you can imagine is relevant and under Charles particular needs. So the identified needs and then looking to meet your specific needs. But this is where some of the differences occur. Sub paragraph c one has to look at the likely effect on the child throughout his or her life Of season two being a member of the original family have become an adopted person. Now this is where the concept of parallel planning is absolutely crucial. Sometimes some found one of active for parents. They will say to me that the local authorities are not parallel planning. They haven't really looked at their case in really enough detail. They've almost ring fenced that adoption is for this Charles interest. But actually my view is you need to take them back to the root original information which means you need to really remind the parent that actually that is not the case, that local authority and indeed the court need to consider the effect on a child of season to be a member of the original family. There is a requirement to look at the feasibility of the child being brought up by original family and that then is also tied in with some of the other provisions in the act. So you can see some of the other provisions in the act, mirror what we have under Children. Actually want us to look at the child's age, sex background, any other characteristics uh and also sub paragraph E which is any harm which the child to suffer the risk of suffering. So you can see this mirrors the Children act. But then he related to power planning this sub paragraph f which is really, really important also which he is both the court and the adoption agency must look at the relationship with the child has with relatives and with any other person whom the court or agency considers relevant. So it is a requirement to look at that to consider that. And then it goes further in so far as the position of power planning is concerned by looking at with the likelihood of any such relationship continuing in the value to a child of it. Doing so the ability and willingness of the relatives or any other person to provide a child with a secure environment. And I'll come back to the part about or any other such present shortly because that has been changed recently and explain why very shortly and then also the wishes of feelings of any of the child's relatives or any other person. So you can see all of these concepts are very much emphasizing the need for looking a lot of feasibility of a child being placed with other with the child's relatives or any other person in that regard. Now, like I say, there have been changes to this original definition of the welfare check list. And this was as a result Of the Children and Social Work Act of 2017. And because of there was a case called VW In 2016 which I'll talk about later and because of that it was felt that it was imperative to ensure that one way are looking at a definition of the relationship with that child has with relatives and any other person. It was felt that it was important that the reference to any other person should include any prospective adopters with whom the child has been placed with four adoptions. So therefore the act was amended To cater for that in particular. So now section 14 specifically provides when this provision came in. It specifically provides that when it comes to matters to which the court is to have regard to sub paragraph F which I just mentioned afterward relatives. It now also says rather than with any other person, it now states with any other person who is a prospective adopter with whom the child is placed. So that therefore puts the prospective doctors are on an even keel with any other persons in this regard. Such as for example family and relatives in that regard. Okay, so appears that in mind. Right as I mentioned earlier then we've got the processes for adoption. So I mentioned earlier we've got the position with uh the position in so far as the adoption agencies regulations is concerned and the constant constituent see consistency in so far as panels are concerned and as I mentioned local authorities that need to be preparing the permanence report as I mentioned earlier, uh the written report in Wales and you can see contains a number of a significant pieces of information so you can see it needs to provide details about the child and their family. Uh some were written by the medical advise us to Charles health with the feelings of the child which I'm feelings of the child's parents, guardian or any other person. The views about contact and with the parent guardian or any other person connected. And then it goes further in requiring for example an assessment of the child's emotional behavioral development, parenting capacity, chronology of decisions and analysis of the option. So as I mentioned, that's where you're effectively looking at the three Bs analysis and this permanent report that needs to be together and then provided to the adoption panel or if the matter is concentrated the agency decision maker to the agency decision makers. So you can see the importance of this permits. Reports are very very significant document. This will also form the basis of the annex B. Report The Rule 6, 14.3 report you will be aware of which requires then in appropriate cases for the annex B 14.3 reportedly found at court upon the lodging of replacement application and the CPR forms the the bulk of that really. But it's written call format and when it's fired at court. Now this will then lead me onto beginning to now discuss with you d position with revocation of placement orders and also the position and leave to oppose the making of adoption orders and to do that. We need to really understand what we mean by when a child is placed for adoption. And sometimes there's a lot of uncertainty amongst practitioners as to what we mean by being placed for adoption. In this case of C city council and others is a very important case which emphasizes this and what it provides essentially is that a child is not placed for adoption until he or she begins to live with the proposed adopters or if they are if they were already living with themselves for example, in the capacity as foster carers when the adoption agency formally allows them to continue to live with them in their fresh capacity as perspective adopters. So what do we mean by that? Well, let's talk through how this actually works then. So let's take a child and who is subject to care proceedings. And the local authority have are going through the various assessments. Okay, so let's assume that's been done. They are parallel planning. So as we said earlier, they have looked at the date fully looked after review. Uh So the assessments are negative of both family friends and uh they are the local authorities now pursuing adoption let's assume. So they go to lack review. There's a change of care plan to one of the single track plan for adoption. They lodged it but they go to a D. M. They lodge their placement application. Now if the placement order is made on the section to anyone and that gives the authorization to place for adoption. As I mentioned earlier thereafter, there is that process of family finding which continues with the social and family finding worker and the home finding workers were sometimes referred to. And the aim is really to try and identify as a pulpit adopters for this child. Let's say they do identify potential adopters. Then there is that matching panel as I mentioned Lincoln panel where those prospective adopters are going to be matched with that child in that regard. And there's a recommendation by the adoption panel which then in turn goes to the ADM. The agency decision maker who is then going to be asked to ratify that they don't have to ratify. Of course they can say no, they may have further information they seek. It may then have to go back to panel who may have to go back to the ADM. Mhm. Let's say the ADM does ratify the decision to match the recommendations much rather once that happens then there is a period of what's known as introductions. So the child is not introduced to the prospective adopters up until now the prospective adopters would have read obviously the child's profile would have read about a child's position would have got to know from the child's social work and more about the child's background but the Charles are actually living with them yet. So that's where the period of introduction starts and they child spends more and more time with the prospective adopters are a little bit more each day. Introduction Sometimes may last about seven 9 10 11, 12 days. It varies and it's only when after the end of the introductions when the child isn't actually living with them because I was progressively spend more more time with them every day. It's only when the introductions finish and the child lived with them is a child placed for adoption. So that's what we mean by the child is placed for adoption at that stage. But as this case illustrates sometimes you may find the carers are foster carers and they are now going to be adopting a child. So it's not that the child is going to be moved moved away from them and then plays back the child will stay with them. And it's when they change their status from one of foster carers to adopters. And again that's not going to happen until their case has been referred to adoption panel. For the change in status for the recommendation and then for the ADM and to ratify that recommendation. Okay so that's really really important as to at what stage your child is placed for adoption because those of you then who represent parents for example and Children if you are then instructed to apply for leave to revoke the adoption de Placement order. Those of you for parents may seek to apply for that under section 20 for of the adoption. Children Act of 2002 and that's where you need to know as to whether or not a child has been placed for adoption or not because if the child has been placed for adoption, you won't be in a position and to apply for leave to revolt replacement order instead, if the parent does wish to contest the planned for adoption at that stage then they would need to wait to see if any placement adoption application is lodged and it may well be advised to apply for leave to oppose the adoption Under section 45 47 of the adoption and Children in 2002, which I look at later. So first thing in Italy is contact the local authority and see whether the child has been formally placed. Okay? And as we've just looked at you can see what that means. Now if the child hasn't been placed and this is where you do need to be notifying the local authority that your intention is that you've got intentions to apply for leave to revoke. Local authorities cannot wait indefinitely for you to lodge your application for you to resort the public funding until largely application. They will give you a limited amount of time after which they will be saying, well because you've raised this with us, we cannot afford to miss out on that potential adoptive placement for the child if if a family has been identified. So they will give you a limited amount of time after which they may then apply to the court for that permission to place, given that you've raised this issue with them. So I would suggest it's very, very important for you to get your application for leave to oppose lodged as quickly as you can. And this is where the what it's your case is particularly helpful because this actually sets out quite eloquently what what the test is effectively for any leave to revolt application. And the court here did say that although the wealth of the child is of course a relevant Consideration pursuant to section one Subsection seven of the act, this is not the paramount consideration when it comes to at the application for leave to revoke the placement order. Development consideration of course welfare is important. It is a factor. But development consideration is whether the proposed application has a real prospect of success. So you are effectively looking to see whether or not there is a real prospect of success in one being successful in being able to get leave to revoke the placement order. Now, if leave is granted and of course you then go on and deal with the revocation and there's been many, many cases on this. Typically some of the situations where leave may be granted as if the local authorities do have the benefit of a placement order. But sadly, despite their best efforts and endeavors, they are simply not finding a perspective adoptive family for a child. There are problems because they it's a child who sadly maybe not easy to place. There are sadly difficulties. We've been able to try and identify imagine appropriate family and in time is obviously of the essence, there is delay and therefore this child is becoming unadoptable sadly in those circumstances and that's where you may find the other local authority or indeed the parents made and apply for revocation in those circumstances and 50 placement orders revoked. And as I mentioned earlier, the care orders revived and then they will undoubtedly be a requirement for the local authority and to change their care plan to one of maybe possible rehabilitation if that was the like plan at the time replacement family or perhaps foster care in those circumstances. So that's where that comes into play. Now, this is where we we then need to be familiar with somebody leading authorities when it comes to plans for adoption. And many of you will be familiar with the case of re B As you know, this is a highly significant case which is decided back in June 2013 and even though we be covers a multitude of issues when it comes to plans for adoption. One of the things that really be looked at is in fact, as part of dissenting judgment by Lady Hale is particularly the position when it comes to plans for adoption. So many of you will know that when it comes to plans for adoption, there were several references by all the judges in re b that the test for severing the relationship between the child and a parent is obviously very strict one and only in exceptional circumstances when nothing else will do. Okay. And as you know, that's the terminology that we use, uh which really sums up how adoption must be and has to be the right order for the child and only where nothing else will do when all else fails. Okay, so it's really, really important and I'm going to break that down a bit further when I talk about the case of we are with you shortly. The other leading case, as you know, is the case of BBS. And this was the then present. Finally, division. Sir James Mumby who had in Dundee leading judgment in the Court of Appeal. And even though re Bs is the case, which has the knowledge requires us to make sure that both social workers guardians and the court need to ensure that they are considering all realistic options rather than you've got to look at a holistic approach as opposed to a linear approach as well as BBS emphasizing that cBS itself on the facts was actually a case about leave to oppose the making of an adoption order sort of case itself was actually about about that. And it was a mother herself here who applied for leave to oppose the making of adoption orders under section 47 5. She argued that there had been a change in her circumstances and in fact, the court of first instance judge was satisfied there have been changes, there have been changes in her life. She was a lot more stable than what she had been sort of. Judge was satisfied that there had been changes there, but leave was not granted, which led to the appeal. So like I said, the court was satisfied that that changes have been made, but that wasn't in itself enough to satisfy the court of the strict test. The court is satisfied that the Children need stability and permanence in their home. And it wasn't that the mother would be successful in the application. So the prospect of success, it was felt was not there. So that led to the appeal and the court appeal in fact did uphold the decision by the first instance judge what we do best and did it actually went through in some detail for our benefit test for seeking leave to oppose the Making of an adoption order in the section 47 3 or 47 5 Of the adoption Children in 2002. And essentially, what section 47 7 says of the act is the court cannot give leave under 47 3 or 47 5. And that depends on uh the base upon which one is applying under which provision unless uh the called it satisfied that has been a change in circumstances since the consent of the parent or guardian was given or since the placement order was made. And you can see here, it uses the terms that determine change in circumstances. It doesn't use the word significant changes circumstances, which is what we use for leave to evoke a special guards reporter for example, he talks about changing circumstances. Okay, So that's the first part of limb. One has to look at that. Okay. And in fact what his lordship said that was that under paragraph 73-74 of the act, his lordship said that there was actually a two stage test and that is firstly, one has to show that there has been a change in circumstances. And secondly, if there has been a change, should then leave to oppose be given in those circumstances. So you can see there's a there's a two pronged test in so far as this is concerned, has there been a change? And if so should leave to oppose be given? And in relation to a second question. So even if there is a change in circumstances has got to be able degree, which then requires a quarter, then go on to the second, in relation to the second question, which is whether the welfare child requires leave to be granted or not. This itself requires to further questions. And the first is, one has to look at the parents of ultimate prospect of success. If they are given leave to policy, you can see this is really looking at the prospect of successful, How likely are they to get leave to oppose the adoption application by those particular adopters. And secondly, looking at that, the court does need to look at impact on the child if the parent has always not given leave to oppose and therefore they need to apply the child's welfare as bank principle as being paramount. Okay, so you can see it's a to protest. First of foremost, has there been a change in circumstances of such a degree as you'll see a lot of case law said, which that requires a quarter gone to second limb and my experiences have had cases where that first part of the limb has been satisfied. For example, the parent is a lot more stable in there situation. There may be managed to address a lot of the problems which led to why the placement orders made beforehand. So there are a lot more secure, a lot more stable. They've managed to address like a lot of the difficulties or whether it's that therapy, whether um disengaging with, say a violent partner addressing their drug alcohol habit, if those were the issues. So a lot of those issues have been dealt with. But then the court I have found and uh when they're going to address the second limit, this is the real more difficult and I would suggest because one has to look at the prospect of success if they were given leave to oppose. And then you've got to look at the welfare of the child. So what's going to be the impact upon the child if leave to oppose is given? And that's where you need to look at what the position is at the moment. So for example, is the childhood living with prospective adopters. And if so, what impact will it have a child to be moving from those prospective adopters? What's going to be the impact upon the child of, for example, returning to the care of the parents or with relatives or other persons connected. So you need to look at those circumstances as well to see whether or not the welfare child requires leave to be granted. Okay. And this is where the case of we are comes into play because what you found is when we BS was decided back in 2013, a lot of lawyers thought that it changed the law and this is where the then President of Family Division wanted to emphasis to all of us to actually that's not the case. Re bs hasn't changed the law. PBS has just clarified and really reconfirmed what we should all have been doing anyway, which is we should be looking at all realistic options and applying a holistic evaluation because a lot of lawyers particularly, I I found some lawyers were misusing re bs in thinking that adoption was a thing of the past and only where uh every single possibility that was put forward had to be explored. But the president said that's not the case. Local authorities should not shy away from seeking adoption orders. And nor should the courts be shine going from making care. What is the plan for adoption if that was in the child's best interests, There was nothing in law which said that there was a requirement to uh huh turn every single stone upside down so that one has to consider every option. It's about realistic options in that regard. And as you know, since this decision there's been a lot of case law development on that which which I'll take you through as well in this session and really linked with that. Then there was the case of repeat for example in 2016 which emphasizes then the holistic evaluation of ebs and and we are and the court needs to ensure that to do therefore carry out a holistic evaluation and therefore they set out the pros and cons of each realistic options. So this was emphasized In the three p case for example. So in this particular case, court did say that when it comes to considering the options, the realistic options, the court can assume that experienced judges will know how to perform this welfare review under both the Children act and also the adoption of Children act and in that regard there is no need for a judge to laboriously rehearsal each item. So it's not that the judge has to go through every single item in the welfare check list Under Section one for the 2000 two by particular housing. Each one going through in a lot of detail and Focusing on each one. As long as the judgment sets out the fact that of course, they'll refer to the welfare check list have taken on board the requirements within that. Then, as long as they have carried out that holistic approach and that's what will matter and therefore on that basis, uh that will in fact suffice. So you can see the the thinking behind that and here. It was felt on the fact that all dollar judgment did suffer from an unstructured form. There was sufficient references in the judgment to the fact that the judge did consider the various and unnecessary elements of the welfare check list. And therefore on that basis, it was felt that he had the judgment was one where the judge had at least considered those elements and applied it. But having said that on the fact that the court appeal did say that they were not convinced that there was sufficient analysis when it came to references in so far as looking at all realistic options. Even though the welfare check list was considered the re Bs analysis was lacking here. And they've on that basis. Uh the judgment was lacking on one of the two realistic options namely adoption and and therefore that needs to then be re looked at. Okay, let's now look at them the position surrounding revocation of care and placement orders. And this was a case of re w and this was a court appeal decision leading judge mohammedan by Lady Justice kink. And one of the things in this case which was highlighted, it was not possible for the reasons given by the trial judge for the court to be satisfied that the making of replacement order would be proportional to come for the child. And here the court to decide to set aside the care and placement orders on the basis that it wasn't clear on the facts as to whether placement order was proportionate. So as you can imagine, again, this is emphasizing the need for the PBS analysis to be done appropriately. Now, that then brings me onto the position with assessing family and friends and this then ties in with the adoption Children out of uh 2002, the section 14 welfare check list. Because you remember earlier, I mentioned that one has to look at uh the witches and feelings of, I'm not just a child depending on their age and understanding, but that the family wider family connected persons, the willingness to bring up the child, the feasibility of that. But then how do we do that when uh there are either pre proceedings or doing proceedings? Family members and friends have been put forward at different stages. Is there, for example, due to assess and if so, is your duty to assess everybody that's put forward? That's really sort of key questions that were asked and challenged and uh answered in this question of reach age. So this is really aged care and adoption assessment of why the family. This was a family court decision by Mr. Justice comp and his Lordship asked the question as to whether the local authorities required either by statute or otherwise to notify why the family members of the existence of a child or to assess them where they are not proposed by parents as potential alternative carers and where the parents or either or both of them specifically do not wish the wider family to be involved. Okay, so that's really the key question here. And therefore, if you've got a situation where as in this case, you're in proceedings and say the father is in this case, is stating to a local authority that he doesn't wish his family to be to know about the child what duty phonies they upon the local authorities and to assess so with in this case and within the cave ceiling, the assessments of the parents were done. They were not looking positive. Local authority were looking at parallel planning that we're looking at adoption as a possibility. And it was the ADM actually, who raised the question as to what had been done in so far as looking at alternative options for this child. And various family members had been identified under part of mother, but none were going to be progressed any further. But as her father, he made it very clear to her local authority, didn't wish his family, his family to be notified. The local authority knew of who his parents were there, the father's birth certificate, they knew who his parents were, they knew where they lived. But because father made it very clear that he didn't wish his family to be identified. And that left a local authority in a dilemma, thinking, what did I do? Did I have a duty to go and speak to his family even against his consent or do they not? Do they leave it? Did I take it back to court. Will there be breaching data protection, for example, if they go and approached His family without his permission, for example. So they're all of those questions they had and the local authority quite rightly lodged the application and the part 19 of the uh family procedures of 2010. By way of inviting the court to then give a determination as to whether or not any family where to be notified or not. And this is where his lordship specifically looked at the position as to whether there was a duty to assess and his lordship went through Many of the various regulations under the Children at the adoption Children in 2002. The statutory guidance, the pier lot of public law, outline the good practice guidance and none of these provisions, his lordship said, provide an absolute duty to assess, even though many lawyers and practitioners thought there was a teacher to assess. In fact, his lordship said No. His lordship said that in light of the review the statute of guidance, the case law, one has to oh, bear in mind that the actions of the guidance makes it very clear that there is a requirement to consider the wider family to look at the feasibility which are remaining a member of the original family. But that is not the same as saying that there is an absolute duty to assess, okay. And in fact on the facts here, given the particular circumstances, his lordship did say that the application of local authority should be allowed, i. E. They should be allowed to go and approach father's side of the family. And the father was given was going to begin a limited amount of time to inform his parents of the existence of the child, so that they could then decide whether to put themselves forward or not. And if he wasn't going to do that, then the judge had authorized a social come guardian to go and see his family to inform them to see whether they wish to be assessed and to build in necessary assessments. But his lordship did give some very useful guidance in exercising the discretion to inform the family. So for example, if you've got a case where say the parent is not willing for the family to be identified because they are frightened about the implications. For example, the child has been born out of wedlock and and there will be shame brought upon them. Uh in those circumstances, they will be arrested them. There may be a risk the child or the parent may have been, may be at risk of abuse, physical abuse or otherwise. Or there's concerns over mental health, example, or there may be religious cultural factors which then play a significant role. And those types of situations are obviously very important and therefore, which will be weighed up in enabling not just the local authority, but indeed the court if needs be determining as to whether or not the family are to be identified or not. Here, there was the absence of any of those factors. The court felt that the father was not wanting his family to be identified more because he was feeling it's somewhat embarrassing for them to know about the fact that he was not in a position to look after his own child. And there wasn't enough here to suggest that his family may not be viable. So if on that basis, that's what the judge did wish for the family to be notified. And in turn, if that didn't happen, then to give permission to the local authority and guardian to go and speak to the family. So it's a very, very significant case? This one that enticing with the other decision in re w this decision in 2016, which led to the changes as a result of the Children's social character 2017, which then led to the changes to section 14 of the adoption Children until I mentioned earlier. And what this case then looks at is what do we actually mean by when nothing else will do when all else fails? How do we actually look at this? In practice, bearing in mind we be had only been decided some three years previously. So this was re w court up your judgment and leading judgment was handed out by Lord Justice McFarlane and his lordship said that this question and raised a number of issues. And first and foremost, the approach them to be taken in deciding on a child's long term welfare. Once the child has become fully settled in a prospective adoptive home and later when a viable family placements identified, what should happen because that's what happened here. This child had been placed with prospective adopters. The child's grandparents had had a the child's are the sibling place with them. And then the grandparents When they became aware that this child had been placed for adoption and they came forward and there was a positive viability assessment of them. They sought for this child to be placed with them sort of parent on their be under grandparents behalf was applied for leave to oppose the making of the adoption order. So what should happen there should the child be placed with family or should the adoption go through? And secondly, the application of the Supreme Court judgment be, what do we mean by when nothing else will do in that context, when you've got a child who's been placed with prospective adopters in this situation and you've got a viable family placement as identified? 3rdly, his lordship asked the question whether the people whose relationship with a child forced to be considered under the act is limited to only blood relatives or whether it should also include as in this case prospective adopters? Well, of course we know the answer to that, don't we? Because the court did say that it should also include prospective adopters and that therefore Led to the change to section 14 F as I mentioned earlier. Unfortunately, whether a court needs to express the undertaken evaluation in the context of the human rights Act uh in such circumstances and if so, which rights are engaged? Obviously that's a crucial question as well. So the case itself involved a child who was two years of age, parents had been ruled out as potential carers and a local authorities are seeking care and placement holders which were granted. There had been attempts to be fair to local authority to identify family members, but due to the non cooperation on the part of the parents and indeed the maternal family, the local authority had no knowledge at all of the paternal family and therefore what unable to trace them. So this isn't a case where there was an activity on the part of local authority. Quite the contrary actually. And sadly, as I'm sure many of you will have already experienced would do sometimes have cases where family members are not being put forward by parents uh for a number of reasons. And this was one of those cases sort of like a sort of local authorities pursued a plan for adoption and they obtained care and placement orders and subsequently the child was placed for adoption with prospective adopters at age eight uh seven months when the child remains since And the prospective adopters and subsequently applied for adoption. So by the time the appeal was heard and the leaf to oppose was being heard, the child had been with the perspective doctors for some 17 months. Okay, now, as you know on PBS, the president of the family division did make it very clear that the length of time that the child has been with prospective adopters shouldn't in itself be a bar to preventing Leaf to oppose and making an adoption order from being granted. So it's not a barrier. But it is obviously a feature because the longer a child has been with prospective adopters, the more of an impact potentially will have and therefore, as you know, that will learn the impact uh that we didn't have a bearing on the second part of the test. And VBS as you know in terms of due to welfare and here of course a child had been formed a firm and sand bond with prospective doctors and it turned out the same with the with the child. So both Princeton had had a second child. Local authorities made inquiries again and this time round the grandparents, the paternal grandparents were identified. They became aware uh they had the first child placed with their this subsequent child placed with them. And then they became aware of this first child who had been placed for adoption. And that's where as I mentioned earlier, they did saw for that child to be placed with them. So there's an assessment that um that was viable and that's where the the grandparents sought for that child to be placed with them. Both. The guardian and independent social workers supported the Special guard ship or have been granted in favor of the paternal grandparents. And the lower coil fact made the S. G. Order to the paternal grandparents which led to the appeal. So really one of the questions in this case was how far the section one subsection four of the adoption of Children act actually go in these circumstances. And his lordship did say that in matters such as this one, one does need to consider the relationship with his child has with relatives and many of the other person in relation to whom the agency considers relevant, including then of course the likelihood of that relationship continues As you know, that's there. One also has to look at the position with the ability and willingness of the relatives only as of such person to then provide a childhood the environments to secure environment. But also as I mentioned earlier that his lordship did say that at a time ah the act as it said, quite want to look at which the feelings of the child's relatives or any other person. But that didn't at that stage make it clear that that was referring to non blood relations and therefore uh two relationships in the form of placement prospective adopters. And that was really the issue in this case. How much wait was to be given with the fact that the child had been placed with prospective adopters? Well, it was argued that uh the prospective adopters should come into the equation and therefore there was a need to consider the fact that a child and the prospective adopters had formed that relationship with each other in that regard. What about the fact that the BBS. It was argued that place when prospective adopters is not determinative as I just mentioned and this is where His lordship specifically referred to that paragraph 42 of the judgment. His lordship did say that Lord Justice Mamby as he was then did say that the fact that the child had been placed with prospective adopters in itself cannot be determinative and nor will the passage of time, for example, uh make that determinative of course. But on the other hand, the older child is, the longer the child has been placed, the greater the impact of disturbing the arrangements. And that's really the point that I made earlier, where one has to look at the impact on the child of uh now being taken from that perspective, placement, if indeed, uh that's what was being done. An existence of a viable home with the child's biological grandparents should not make them an automatic runner, uh should make them an uh the option of of of a runner, but not an automatic winner, as the judge described it. And also, the judge was critical of the approach that was taken by somebody assessors in the case. Where there was this idea that there is a right or presumption for a child to be brought by natural family. And in fact, his Lordship said, there is no such presumption that the only presumption we have is to make sure it according to the welfare principles, the child is placed in the in the placement which best meets stay well welfare best interest. But there is no presumption that says that Children have a right or family have a right to have the child brought up in their in their cape. So, in fact, on the facts, be given the impact Point that I mentioned earlier upon the child of being the movement of prospective adopters on the facts. The court did decide that in fact adoption was in the child's best interest and therefore I leave to oppose under section 47 was not met and therefore uh the application was unsuccessful. So it's a very, very significant decision this one. Now, I just wanted to remind you that when you are dealing with cases surrounding adoption, you'll be aware that there is the Uh the something of the president's guidance of listing uh of final hearings and adoption cases. This was of 11th of April 2018, you remember. And it's very important to make sure that you have read and are familiar with all aspects of it. One of the key aspects that this emphasizes that the court should never list the parents application for leave to oppose the adoption application and the final hearing on the same day, there has to be that Gap of course, which many of you will be familiar with. And if the application leader opposes listening determined and his own successful and they must list the application of final hearing and there has to be no fewer than 21 days between the refusal of any leave to oppose and the listing of the final hearing, which is now of course, regardless of final adoption hearing and there's no way to abbreviate that time period. So very, very important to bear that in mind Right. What I wanted to cover them for the last part of today's to take you through a few of the authorities that looking at the holistic evaluation. So there was a case last year by Mr. Justice key. In the case we see a child adoption is 2020 decision. This involved a one year old, A paragraph 58. Other judgment in particular, his lordship said that this was a very sad case. Mother had learning difficulties of vulnerabilities from a very young age and it was a very, very unfortunate case because it's one whereby when one was applied to holistic evaluation, it was clear that this child could not be cared for by either of her parents in a way which would protect her and which would meet her welfare best interests. There were no other members of the wider family, paternal and maternal who could care for the child either. And the judge quite rightly then applied to re Bs analysis, looked at all of the realistic options and therefore questioned whether foster care as possible, but given to Charles age, his lordship did say that it would be wholly contrary to the welfare best interest for the child to be placed in long term foster care, there would be the ever present risk of placement breakdown and possibly of moving from one foster placement to another. And the child would also of course be subjected to regular social visits. looked hard reviews. They wouldn't necessarily be that sense of security, stability. This idea of having a forever family and that sense of belonging and permanency wouldn't be there. Which many adoptive placements would of course provide even though long term foster placements of course work exceptionally well. I'm sure you'll all agree with that. But legally it doesn't give you that same level of stability. Security sense of belonging. Arguably that adoption wouldn't would in one case is, so that's where based on the facts and based on the needs of this particular child. The judge did say that the warfare best interests of this chart where that adoption was the option and the only option to meet its charge welfare best interest. So that was the case. Now, as I mentioned earlier, sometimes you love situations where parents may wish to relinquish their Children for adoption. Uh, and this could be obviously even outside proceedings and sometimes parents may wish to give dead child of adoption without wanting to notify the wider family. Sometimes I've had cases where the mother seeks to give her baby above for adoption and she doesn't want the father to be told in those circumstances. And that's where local authorities need to ensure that they are complying with the adoption agencies regulations here, particularly regulation 20 which then requires the local authorities and refer to refer to Charles matter to Kafka's sarcophagus covering when Wales so that uh, they would then enable a reporting officer to then go and speak to mother and father as well if he's got parental responsibility to see If they wish to provide the consent on the section of 19 and 20 of the Act to the charming not only placed for adoption but potentially being adopted. Now those of you who are representing local authority is very important to make sure that you do provide various pieces of information to Kafka's in order to enable them to carry out this process. I. E. A certified copy of child's birth certificate, name address of parents and legal guardians who are willing to give consent and the chronology of actions and decisions taken. So very important to make sure that information is made available accordingly and also confirmation that the agency has cancer and explain to the parent insofar as is possible to legal implications of consent to adoption and that information has been provided And the Welsh equivalent Nrd Wales regulations of 2005, which summarize dis provisions. Now, sometimes we love cases where there will be uh arguments surrounding post adoption contact and the leading authority on that currently is the case of re be post adoption contact. The leading judgment was handed down by the President of Family division Sir Andrew McFarlane. This was a judgment handed down in January 2019 and the case itself looked at the issue surrounding post adoption contact and whereas in this case you've got parents where the mother was arguing that if the parent, as in this case was making it very clear that it had no intention whatsoever to destabilize the adoptive placement. They simply wish to have face to face contact with their child a few times a year. And and the evidence wasn't that they were likely to disrupt the placement. Then in light of the adoption of Children, Act in light of the reviewing guidance given so far as post adoption and open adoptions were concerned. The argument was that there should be a trend. And and certainly on the facts of this case, a requirement to enable a post adoption contact in the form of open contact, so therefore face to face. But in fact, his lordship did say That uh section 27 subsection for the Act does require the court, Of course, the considered issue of contact and the plans for contact before any placement for adoption order is made. And that made in set the tone for future contact. But whilst there may be justification considering some form of direct contact, the ultimate decision as to whether as to what the contact is take place is for the adopters. And the court will be extra will be extremely uh before the adopters under court. And it will be extremely unusual for the court to impose the contrary arrangement against the wishes of the adopters so it's possible to do so. But it will be extremely unusual to go against what the adopters perceived as being the appropriate level of contact. Following. Obviously, discussions with uh there were the social worker in that regard and at the placement toward the stage. His lordship did say that courts should be careful to stress that if there is any future issues as the contact safe for unusual circumstances, no order will be made to compel adopters to accept contact arrangements which didn't agree with. So this case famous emphasizes that point quite considerably right well done for getting to the end of this session. And now it's been quite a lengthy session for you. But I wanted to cover as much as I can with you relating to matters relating to adoption. What we're going to be doing in the next session is I'm going to be developing this theme. I'm going to be bringing up to speed with some of the more recent judgments surrounding leave to oppose adoption in particular and looking at how the law has developed over the course of the last year. So thank you very much needed for listening. I hope that's been a useful session for you so far. And I'll speak to you next time. Thank you very much. Bye for now.
01:11:15
