As we wrote about here, the Government announced in April:
‘Child rapists to automatically have parental responsibility stripped: Vile abusers who rape a child will have their own parental responsibilities automatically removed under new laws.’
However, this reform has been delayed by the calling of the General Election.
Just how limited this change in the law would be (if and when it comes in) was illustrated in a hearing I recently attended at a family court in south Wales.
This was not a Reporting Pilot hearing, because it was a step-parent adoption and adoption procedures are in a separate set of rules. I didn’t have a legal blogger’s right to attend but the judge allowed me to, once it was clear no one objected. Interestingly, the judge asked the lawyer for the Cafcass guardian to draw up a Reporting-Pilot-style Transparency Order (TO), as the mechanism to set out what restrictions on reporting would remain in place. So this is an example of a TO being adapted to non-pilot cases.
The major legal issue in this case was the involvement of a biological father who had not seen his child since birth and who was a convicted child sex offender (not relating to the child in the case). He had however become involved in family court proceedings following an application for adoption by the child’s stepfather. This birth father did not have parental responsibility (PR), so his consent to adoption was legally not required, but his parental rights meant he had been notified of the application.
So, even if the reform that we wrote about (sought by Harriet Harman MP) had been in force, it would have made no difference for this child, because the reform is only about PR, not about parental rights.
Facts in this case
(Names have been changed and I’m following other reporting restrictions.)
Alex is a child of primary school age living in south Wales with his/her mother Mrs B, her husband Mr B and their child, a younger sibling (until the adoption, technically Alex’s half sibling). Alex had been cared for by his/her mother from birth and had never known his/her birth father. For about half his/her lifetime to date, he/she had known Mr B as his/her father (what can be described as a ‘social parent’ or ‘psychological parent’). Mr and Mrs B wanted to adopt Alex and give him/her the same legal status in the family as their younger child.
A social worker with the adoption agency for the area reported positively on the application, but some issues emerged about the history of Alex’s birth father that caused the court concern. The court appointed a Cafcass guardian and she appointed a solicitor for Alex.
At a directions hearing in April, the guardian had expressed her view that Alex’s birth father should be located and given notice of the adoption application. Mr and Mrs B raised a concern about this because they were aware (although not in detail) of a historic offence against children committed by the birth father. The judge asked the guardian to report on the actions required if the birth father failed to engage and/or did not provide consent and to consider the lack of information sharing between ‘the Local Authority’ and Mr and Mrs B, including views on what information should be shared in the future. I didn’t attend this hearing so I’m not clear what information was held by which local authority (LA).
In the final hearing, that I did attend, Alex and the guardian were represented by a barrister. Mr and Mrs B didn’t have a lawyer. They attended the hearing with a McKenzie Friend in the court’s video suite, just in case the birth father came to court. Communication between the parents and the courtroom seemed to work well. The judge’s clerk put out a tannoy call for the birth father, but no one seemed to expect him to be there. He was not a party but it was confirmed that he’d been notified of the hearing date. The adoption social worker also attended in person.
Information sharing about child sex offenders
Following the adoption social worker’s positive report on Mr B’s application, the guardian had also concluded that adoption was in Alex’s best interests. Both the adoption social worker and the guardian had met Alex, who had an appropriate understanding about the adoption, and there were no safeguarding issues at all about Mr and Mrs B’s parenting.
However, the guardian made a number of other recommendations. This was where things got tricky because the guardian was recommending ‘the local authority’ take specific actions to support Alex’s parents with an ‘updated safety plan’. Secondly, she had discovered that the birth father had other children who may require protection. There was no LA that was a party in this case and the other children didn’t live in in the same LA area as Alex. No one present actually knew what risks the probation service currently assess the birth father as posing to any children. The reports to the family court just referred to an offence committed by the birth father when he was 14, for which he had served a sentence in a Young Offenders Institution. According to the reports, Mr and Mrs B didn’t know the details of the historical offence. Although the guardian had recently met the birth father, he told her there was no need for anyone to know about what happened when he was 14, because he had no intention of interfering in Alex’s life.
Consequently, although the guardian believed that Mr and Mrs B should be informed about the risks and might require support from their LA to deal with these in the future, no one knew what those risks might be. Nor did anyone know what risks he might pose to his own children.
The senior lawyer for the LA where Alex lives made herself available to the court. She had, that morning, spoken to the senior lawyer for the LA where the other children live, and she had also attempted to speak to the probation officer. She assured Mr and Mrs B in precise detail on how they can access LA support if they need this as Alex grows older and might start asking about his history, and she also advised about how they could approach the police if this was necessary to protect him.
Fascinating as I found all this discussion about the extent of information sharing – it’s quite technical so I won’t go into detail apart from reporting the decision (below).
Court decision
Oders for adoption and for Alex’s surname to be changed to that of his parents and sibling were made.
The judge also made a Third Party Disclosure Order against the probation service for them to disclose to the LA where Alex lives, the last 12 months OASys reports (OASys is the probation system for tracking current risks by offenders) and any specialist reports that may exist regarding the birth father. This would equip the LA to advise Mr and Mrs B if they seek help in future.
The guardian may make a MARF (multi agency safeguarding referral form) regarding the birth father’s children. This was expected of the guardian because, apparently, Cafcass can make such a referral but a judge can’t.
The judge invited Mr and Mrs B (and Alex) to a celebration visit to the court in a few weeks’ time, which Mr and Mrs B said they thought Alex would like.
Comment
It’s often thought preferable for a new partner who is now the child’s social parent to make a PR agreement with birth parents, rather than cutting out the birth father completely. However, it was clearly in Alex’s welfare for the court to recognise the reality of his/her family life and make an adoption order to ‘cement’ the legal status of Alex’s place in the family, as the judge put it, just as in real life, Alex’s place in the family was secured.
It’s unusual for lawyers to be instructed in step parent adoption cases, especially where it’s ‘uncontested’ i.e. the birth father consents or doesn’t have PR. It’s also unusual in my experience for a Cafcass guardian to be appointed where there are no consent issues. I don’t know why the guardian sought consent from a birth father who doesn’t have PR. I recognise it’s good practice to notify a father in that position that there’s an adoption application – in other circumstances a birth father might want to apply for PR and oppose the adoption. But here the birth father had never shown any interest in Alex. (He seems to have expressed only support and even ‘thanks’ to the applicant.) I didn’t hear any argument on behalf of the guardian as to why his consent was sought, especially after she was alerted to the possibility of his posing a risk to children.
As an observer whose knowledge of criminal law and procedure is not wholly up to date, I was interested in learning more about the very serious and lifelong impact on an individual who had been convicted of a sexual offence against a child when he was 14, and how the judge and all the professionals worked together on the implications of this for Alex as he gets older and may start asking questions, and how his parents can be supported to protect him. There are also considerable implications for the local authority where the birth father’s three children now live, in taking the necessary actions to ensure that those children are protected.
The amendment to the Criminal Justice Bill that would extend ‘Jade’s law’ to parents who are convicted of raping a child under 13 may be enacted under a future government – and such a father would lose his PR. This won’t mean a father whose name is on the Sex Offenders Register will be excluded from a case like Alex’s, whether or not he ever had PR nor whether he wants to get involved. There are much wider policy issues about parental rights here than are acknowledged by the politicians.
Image: Creative Commons Licence at Alpha Stock Images
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