ARE WE NOW WITH Re B AND Re BS? Andrew Pack (Guest Speaker) who is - - PowerPoint PPT Presentation

NOTHING ELSE WILL DO – WHERE ARE WE NOW WITH Re B AND Re BS?

Andrew Pack (Guest Speaker) who is the award-winning Legal Commentator

• f the year 2014 and author of “suesspiciousminds” blog will look at the

rapidly developing jurisprudence relating to placement orders and adoption. Adam Smith, Crown Office Row, Brighton. will look at the British tradition of adoption orders, how Re B impacted on the UK system, and how other European States provide long term care for their children:

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Introduction

By Adam Smith

Adoption SEMINAR

What the heck is going on?

No no no no no, yes

The DFE take on ADOPTION

 From the July 2013 statutory guidance  The local authorities that are most successful in finding adoptive families for looked after children will generally be those with a very clear care planning process that always considers adoption as a possible permanence

• ption and not an option of last resort;

And LADY HALE’s TAKE

 Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict:

• nly in exceptional circumstances and where motivated

by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.  Re B (2013)

That in part derives from European authority

 There are different approaches throughout Europe as to what happens with children whose parents have caused them harm, but this is the ECHR line in the sand  measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child's best interests Y v UK

There’s SOME DEBATE ABOUT WHETHER WHAT LADY HALE SAYS IS NEW LAW

 Or whether it is just a refresh or reminder of what the existing law was. But what IS clear is that Lady Hale’s principle (or test) is still valid. Look at what the President said in Re R  [50] The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible

• nly where, in the context of the child's welfare,

"nothing else will do". As Baroness Hale of Richmond said in Re B, para 198: "the test for severing the relationship between parent and child is very strict:

• nly in exceptional circumstances and where

motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."

And if you were in any doubt

 Para 58 …in the final analysis, adoption is only to be

• rdered if the circumstances meet the demanding

requirements identified by Baroness Hale in Re B, paras 198, 215.

Quick linear v holisitic

 McFarlane LJ identified in Re G, a problem with the traditional method of deciding that adoption is the “last resort”, which was to work your way through the options and ruling them out, deciding that if adoption was what was left after that, it WAS the last resort

Possible new carers – linear assessment

 Pig Farmer (smelly, chance of being eaten by pigs)  Lawyer (boring, unpopular at parties)  Formula One Racing Driver - that’s what is left, so I must become a Formula One Racing driver  But what if I do as McFarlane LJ suggests and turn the list upside down?

 Formula One Racing Driver - I can’t drive. (To be fair, there’s not that much need for “reversing round a corner” in Formula 1, but still, I suspect I would be failing the interview process at that stage)  Lawyer – god, it really can be very boring  Pig-farmer - so that leaves pig-farming and I should become a pig farmer  Thus, Re G, and Re B-S et al make it plain that it has to be a HOLISTIC approach, looking at the pros and cons of each of the realistic options before ruling any in or out

When LOOKING AT COURT OF APPEAL CASES ON ADOPTION SINCE JUNE 2013, I like to think about THIS GUY

No, NOT HIM. THIS GUY

Here we have our court of appeal

And pre Re B, they are roughly in the

• middle. They hear an adoption case

and might say yes, or might say no. It all depends on the facts.

It’s JUST A JUMP TO THE LEFT

And then a step to the right

Now, put your hands on your hips

And we’ll leave it before the pelvic thrusts

 Because my animated gif of Court of Appeal Judges doing pelvic thrusts…  Would really drive you insane

Quick run-through of the “jump to the LEFT” cases 2013

 Re S (Brent) - Court had not had the proper evidence to decide between the options of Adoption and SGO, appeal against Placement order granted  Re P - Court had failed to conduct proper balancing exercise, appeal granted  Re G - wrong to conduct a linear exercise “ruling out” mother and leaving adoption as only option left – doing the exercise the other way round could produce the

• pposite outcome. Must be holistic. Appeal granted

 Re S – Court had not had all of the information necessary to properly conduct balancing exercise. Appeal granted

Jump to the left

 Re B-S - I think you all know about that one – sets up the rigorous requirements of both social work and Guardian evidence, and of judgments – to properly weigh each of the options for the child as a holistic exercise (The mother in that case lost the appeal)  Re Y – Court had failed to weigh up all of the options, appeal granted  Re C - Judgment was flawed on Re B-S, but just squeaked through when reading totality of it (appeal failed)  Re F - Court was wrong to make a Placement Order where there was doubt about whether the plan could be delivered – appeal granted  Re E – Court had been wrong to make Placement Order and had not looked at the proportionality of the outcome against the evidence – appeal granted  Re A – wrong to impose conditions on a Placement Order, but where the Judge thought that such conditions were necessary it would be wrong to make the Placement Order at all

2014

 Re S – Court was wrong to make Placement Order and should have assessed the father more – appeal granted  Re P – court was wrong to have ruled out relatives outside of the UK – appeal granted  Re T (my particular favourite) - Court had failed to explain in its judgment why the baby could not wait two years for mum to finish her prison sentence. (this appeal was granted, and sent for re-

• hearing. The appeal took ELEVEN MONTHS to be processed, and

child was in limbo throughout)  KS v Neath Port Talbot – Court’s failure to properly assess the grandmother who came forward last minute made the judgment flawed – appeal granted.  Re ND – court failed to carry out adequate assessment of the children’s needs – appeal granted  Re FM – Court had failed to give any reasons why Placement Order was warranted – appeal granted

Step to the right – small steps

 M v Suffolk 2014 - the judgment did not contain a neat balancing of welfare factors, but taken as a whole it had grappled with the issues, appeal refused  Re K and KT – judge had properly addressed the issues and the grandparents allegations of improper processes were not bourne out. Appeal refused  Re W - Court was entitled to make Placement Orders on

• ral evidence of the experts, although their written evidence

had been against it (judgment not very strong on that change of evidence, Court of Appeal had to infer it). Appeal refused.  Re F - Court had been asked by parents to make an SGO rather than Placement Order, and had not been wrong to make the more interventionist order – child’s need for security tipped the balance - appeal refused

And now the big ones on “nothing else will do”

 Re M-H (an appeal from Brighton Family Court). On deciding that adoption, rather than long-term fostering was the safest option and met the child’s needs and thus “nothing else will do”, the Court had not diluted the Re B test and was right in law. The totality of Lady Hale’s formulation had to be applied, not just the shorthand “nothing else will do”  The “holistic” balancing exercise of the available options that must be deployed in  applications concerning adoption is not so as to undertake a direct comparison of  what probably would be best but in order to ascertain whether or not the particular  child’s welfare demands adoption. In doing so it may well be that some features of 

• ne or other option taken in isolation would produce a better outcome in one

 particular area for the child throughout minority and beyond. It would be  intellectually dishonest not to acknowledge the benefits. But this is not to say that  finding one or more benefits trumps all and means that it cannot be said that  “nothing else will do”. All will depend upon the judge’s assessment of the whole  picture determined by the particular characteristics and needs of the child in  question no doubt often informed by the harm which s/he has suffered or been  exposed to.

Re M

 Re M (a child: Long-term foster care)  The principle that adoption was to be sanctioned only when nothing else would do had to be interpreted with a careful eye to the realities of a child's life. Whether nothing else would do required an evaluation of all the circumstances, and the fact that speedy action would improve the prospects of a successful adoption for a child of a particular age had to take its place in the

• verall appraisal of a case.

 Appeal refused

 CM v Blackburn - “nothing else will do” was not a new legal test for adoption or standard of proof– the test is the statute and there should be no gloss put on it. Appeal refused  Re W – Judge had been right to reject grandmother as an option that would not meet all of the children’s

• needs. Appeal refused

 Re T – adoption was in children’s best interests given that mother was not accepting that father had caused the injuries – appeal refused  Re P - judgment was flawed, but reading it in fine detail there was enough there to suggest that the Judge had got it right – appeal refused

Re R - two key passages

 I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.  The law and practice are to be found definitively stated in two cases: the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of this court in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035. So, B-S didn’t change the LAW just practice, but the “law and practice is found in Re B and Re B-S” (remember those earlier slides – the formulation of Lady Hale still applies)

Does it need to be EVERY option?

 I emphasise the words “realistically” (as used in Re B-S in the phrase “options which are realistically possible”) and “realistic” (as used by Ryder LJ in the phrase “realistic options”). This is fundamental. Re B-S does not require the further forensic pursuit of options which, having been properly evaluated, typically at an early stage in the proceedings, can legitimately be discarded as not being realistic. Re B-S does not require that every conceivable option on the spectrum that runs between ‘no order’ and ‘adoption’ has to be canvassed and bottomed out with reasons in the evidence and judgment in every single case. Full consideration is required only with respect to those options which are “realistically possible”.

Is Re R a re-set button, or a reboot? Are we back to 2012?

 I really don’t think that we are. The judgment makes it clear that :-  Analysis of the pros and cons of each realistic option is required (the B-S analysis)  The judge still has to tackle it in a holistic manner rather than linear manner  The reasoning needs to be robust  Lady Hale’s formulation and the issue of proportionality remains  DON’T COME WITH APPEALS WHERE PEDANTRY IS YOUR BEST OR ONLY POINT THOUGH

But let’s not forget Holman J’s decision…

Re A and B and Rotherham 2014

 Parliament set up a mechanism allowing parents to challenge (with leave) an adoption order – they could have legislated that Placement Orders are the end of the

• road. So, this power should not be largely illusory – it

must be a power that is capable, in the right circumstances, of being a meaningful remedy  Yet no parent had ever won a challenge to an adoption

• rder and got the child back

 Due to catastrophic failure of professionals to deduce that white mum + white dad = black baby means that

• ne of those assumptions is wrong, the Court made Care

Order and Placement Order with the wrong dad as a party  When the adoption application was made, real dad had come forward, and more importantly, had put forward his sister  All parties agreed that if the aunt had been known about at the time of the final hearing, the child would have been placed with her

 Holman J refused to make the adoption order and placed the child with aunt  More significantly, said that it had not been a difficult or finely balanced decision  Is this the one-off case which turns on its facts?  Or is it a jumping off point for any case with a relative not presented or ruled out at the time?

The impact of Re B

• what is

everyone else doing ?

Adam Smith Crown Office Row (Brighton)

The “politics” of adoption in the UK

July 2007: “In 2000, Tony Blair set a target for councils to increase adoptions by 50 per cent. Town halls were promised cash rewards for reaching their

• goals. Critics claim that the target has given

social workers a perverse incentive to break up more families. Mr Hemming said: "There are clearly masses of miscarriages of justice, but ministers want to prevent parents from campaigning against them by preventing these parents from talking about their children after a case.”

 The Children and Adoption Act 2014:

• Separation of siblings
• abolishing the need for “cultural

matches”

• encouraging foster/ adoption process

The economics of adoption as opposed to long term fostering

Loughborough University: “on average it costs a local authority £25,782 to have a child adopted, compared with a figure of up to £400,000 for each child remaining in long—term care.”

The impact of Re B and Re B- S The Headlines:

“Adoptions down by ¼” “Adoption in state of emergency as number of cases plummet”

“In the year to March 5,050 children were adopted from care 26% higher than the previous year and 63% higher than 2011. However in the three months to June the number of placements stood at just 960 compared with 1,830 in the three months to September 2013”

The Response….

 The Times: “Family Judge tries to ease

adoption crisis”

 Sir Martin Narey, Chair of the adoption

leadership Board: “Impact

• f

Court judgements

• n

Adoption- What Judgement’s do and do not say” November 2014

Sir Martin Narey - Context

Sir James Munby has seen this document and is supportive of its aim of dispelling the myths that have arisen “In the last 12 months we have witnessed a significant reduction in the number of placement

• rders made and the number of decisions by local

authorities to peruse care plans for adoption. These changes risk reversing the substantial progress made” “High profile cases have led to inaccurate assumptions being made…………..”

The Narey Myths

ONE The legal test for adoption has changed

• “The law has not changed”

TWO All alternative options must be considered “ only realistic options”

Myths

THREE “Nothing else will do” means foster care should be perused Does not mean settling for an option which will not meet child’s needs FOUR As it is a “last resort” planning must wait

• Planning at earliest stage required

The Debate…….Mostyn J: Re D [2014] EWHC 3388 (Fam)

The benefits of successful adoptions are well- evidenced: the overview of evidence research by Coram and Barnados shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth

• f

attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children)

Mostyn J ….

“The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest

• f

Europe would have hastened to have adopted it.”

Why are we one of the 3 only European jurisdictions to sanction non- consensual adoption?

 Are we???

Looking at other Jurisdictions

Comparisons

 The datasets do not compare  The legal terminology/ concepts do not

compare

 The whole concept of child protection

and State intervention do not compare

Child Protection embedded in the cultural context of that State…

Emily Munro “Safeguarding Children: a comparison of England’s data with that of Australia, Norway and the US”:

 Anglo- American countries including England,

the US and Canada were classified as adopting a CHILD PROTECTION APPROACH, whereas Nordic and continental countries were classified as adopting a FAMILY SERVICE APPROACH

Child protection ….

 England and the US…..tend to see child

protection as distinct from a wider continuum of services with lower levels of need, to delay intervention and take a more legalistic approach.

 In contrast the family service approach is

essentially needs based, child protection services are seen as a part

• f

a continuum of services for children in need and their families.

Attitudes to adoption:

Adoption , “child protection” and state intervention are embedded in the cultural context of each state

Non- Consensual adoption?

 Judicial systems extinguish Parental rights

and responsibilities

 Therefore parents “cannot” consent

“Public prosecutor” – criminal system can extinguish PR.

“Permanency”

 In England and the US efforts have been

made to promote permanency for children who cannot safely return home”

Different “sorts”

• f adoption

 Example- Belgium :

“custodianship”- transfer of part of PR under judicial control “Plenary adoption”- extinguishes bonds of birth family “Simple adoption”- creates family ties with the adopters but not the family of the applicants

Italy and Spain & Greece

Jorge de Valle, Canalli, Bravo and Vecchiato “Child protection in Spain and Italy: Influence of family supported society”

“

“There has been a strong tradition

• f using residential care by means
• f large institutions, mostly run by

catholic religious organisations, in both countries, on the other hand both countries share a Mediterranean culture where the family has been the main provider

• f personal and social wellbeing”

“The Family” Gosta Esping- Andersen “The three worlds of welfare capitalism”

“Spain, Italy and Greece are assimilated under the idea that the main subject of welfare system is represented by the family rather than institutions”

Italy – non consensual adoption

 Adoption without parental consent is known as

“special adoption”.

 In the absence of parental consent, a minor

cannot be adopted unless there has been a “declaration of adoptability”.

 Such a declaration cannot be made unless the

court is satisfied that the child has been “abandoned”.

 There is no exhaustive definition of

“abandonment”.

 A child whose parents are dead or whose

parentage is unknown is an abandoned child.

 In all other cases, the court must be satisfied

that “the child has been deprived of moral and material support by his parents or other relations entrusted to provide such support and that the lack of support is not attributable to temporary circumstances beyond their control”. Dunque, l'art. 8 della legge n. 184/1983, come modificato dalla legge n. 149/2001,

 When considering moral and material support

the court must be mindful of cultural factors.

 Lack of moral and material support may result

from acts or omissions on the part of the relevant adults.



Each case turns on its own facts.

“Guardians”

 Germany- “vormundschaft”- legally

regulated comprehensive care for an individual unable to safeguard their interests.

 - also “Curators”- PR for a limited number

• f matters

Eastern European Countries

State Institutions

Bulgaria

 Campaign to move away from

institutionalising children – orphanages are significantly under resourced.

 Parental consent to adoption not

needed- exceptional circumstances. - - “where child’s life or health are in danger”

 Abandoned in an institution in excess of 6

months

Hungary

 Strong resistance to prevent exercise of

PR by State

 Only infants shall be adopted  Parental consent may be waived

Nordic Countries

”It is said that Nordic

countries are world leaders in child welfare

Paivi Sinko – Helsinki University

Norway:

 “In Norway maintaining the blood tie

between biological parents and children is presumed to be a moral and legal right and therefore adoption is rarely used” ( Skivenes 2011)

Swedish and English systems compared ( Weightman)

 Sweden - significant support for “society

at large”- greater resources- society greater tolerance for welfare support.

 In England focus on “child protection”

from “abuse and neglect”

 Sweden- “far less specific child abuse

laws” – involvement preventative rather than reactive protection

 Swedish ombudsman complaints- failure

to recognise and address offences against children

“Social work and child welfare politics: through a Nordic lens”

 “nordicness”:  Provision of psychosocial recourses:  - maternity and child clinics, home help, day care,

family guidance structures, school health care, and financial support “this is the first arena where concerns for a child’s wellbeing is raised”

 “family policies give more long-lasting support to

families with children”

 “illfare” – growing number of child welfare clients

in Finland” ( CP clients trebled over the last 15 years)

Finland

 “According to adoption act, adoption may only

be granted with parental consent”

 Finnnish law does not permit any kind of formal

end to the legal relationship between parent and child- fostering or institutuional care.

 However- in exceptional circumstances- if refusal

• r withdrawal of consent is unreasonably withheld,

adoption is definitely in the best interest of the child

 Focus on the nature of the relationship: “only

where totally broken down”

So--- what does our adoption law say about our cultural identity?

 Tolerance to state interference in the

family?

 A weakened family structure?  An intolerance to significant social

expenditure?

 A focus on “child protection”

???

Thank you. We will now answer any questions from the floor and from those of you logged in

• nline.