Re W – The Wrong end of the stick?

[Edit 17/10/16 : The Daily Mirror Various newspapers] this week reported a family case about adoption. We think they have got it rather wrong.

The article is by Brian Farmer, and is titled “Grandparents win court fight to stop grandchild they didn’t know existed being adopted” and (at the time of writing) you can read it here [update 18 Oct – article now replaced with correct one this morning – you can read the original in pdf format here]

It tells a story of a case in the High Court before Mr Justice Bodey, where grandparents only who found out very late about the existence of their grandchild were able to successfully recover the child from prospective adopters she was living with, so that they could care for her within the family. The case is unusual because it is very difficult to row back from a situation where a child is settled and placed with a family who are ready to adopt her.

There is a similar story in the print edition of The Times today. See here.

We’ve not been able to find that article online. [Edit 17/10/16 : Also see almost identical article in The Sun : Grandparents win ‘tragic’ court battle to stop granddaughter they didn’t know existed from being adopted, and this article in The Daily Mail, which seems to have managed to get it right : Couple who only found out they had a grandchild after her first birthday lose second round of custody battle after adoptive parents appeal court ruling]

From the direct quotes from the judge and the factual summary in the article[s] it is possible to confirm that the case being referred to is this one Re W [2016] EWHC 2437 (Fam) (20 May 2016): (you can read the full judgment here. From the judgment you can see that the case was decided in May 2016.

It is clear from the judgment that the headline is inaccurate in suggesting that the grandparents were permitted to adopt the child. The judgment says clearly that “They seek either a Special Guardianship order or a Child Arrangements order granting them residence.” This is legally very different to an adoption order, in particular because it would not remove the parents legal status as parents of the child, although a special guardianship order would significantly curtail their role. It is very unusual for grandparents to adopt their own grandchildren in this way and the error is a significant one. [21.20pm : We’ve deleted this passage because it was incorrect. The headline in fact doesn’t suggest that the grandparents adopted the child. So we got that wrong. Long day…]

To anyone who follows family law cases, the facts of this case are strikingly similar to another case that the Court of Appeal dealt with in the summer, called Re W. And what’s more, the court in this case seems to have said the exact opposite of the court in Re W. In fact, both cases are called Re W.

There is a footnote at the bottom of the judgment that says this :
NB: NOW SEE THE COURT OF APPEAL’S DECISION IN RE W (A CHILD) [2016] EWCA Civ 793.

When the judgment first appeared on BAILII earlier this week the footnote did not include the URL link or full citation to the case of Re W. That seems to have been added since.

When we first saw the case published we thought it rang a bell. But we were a bit puzzled by the footnote. We realized then that the reference was to the Court of Appeal decision here (subsequently confirmed in the amended footnote). That appeal was decided in July and was widely reported. The Court of Appeal overturned the decision and said that the judge had applied the wrong test – in cases where a child has already been placed for adoption there is no presumption that a child is best placed with a family member. The judgment is quite long and complicated and some lawyers have found it quite hard to get their heads around, but Suesspicious Minds blog explained it at the time here : Re W – No presumption for a child to be brought up by a member of the natural family.

So when the Daily Mirror today report that the grandparents won their battle, sadly for them, they are wrong. The Court of Appeal judgment tells us that there will be a rehearing, but we don’t yet know whether or not that rehearing has taken place. It is clear from matching the dates and quotes that the judgment recently published is not the rehearing but the original “first instance” decision.

We don’t think it would have been very hard for the national press to have properly checked and read all this before publishing their story, even if the footnote was not as clear at the time of writing as it is now. It is particularly concerning because non-consensual or forced adoption is a controversial and upsetting topic, and the reporting of this story in this way may give parents and extended family members false hope. In cases of this sort it is very very difficult to secure the return of the child.

When overturning the decision The Court of Appeal expressed the hope that the adopters and grandparents might be able to come to some sort of arrangement whereby each could have a role in the child’s life. We don’t know if they’ve managed to agree something along those lines. If they have we might not see a reported decision. We are more likely to see a published decision in the event that the application is contested and the judge is asked to decide. If we do see a third published judgment we will add a link to it at the foot of this post.

We think that the practice of adding a link from a first instance decision to a subsequent appeal judgment is really helpful and it is positive that the first instance decision was published to help people make sense of the Appeal judgment. If this practice becomes more established perhaps there will be less confusion about the connections between cases as these sorts of signposts will be more familiar to journalists and other readers.

We’ve emailed the author of the article to let him know we think there is a mistake and to ask if he will make a correction, and will update this post as appropriate if we hear back.

[Post Script : Brian Farmer, the author of the article has sent us a nice reply to our email thanking us for flagging the error and saying he will look into it. Thank you Brian – we’ll update further as appropriate.]

[Update : 17 Oct 16 : The article is still live. We’ve written to The Mirror and are about to write also to The Sun, now we’ve noticed they made the same error.]

[Update : 18 Oct 16 : The Mirror have replaced the original article with a corrected version prepared by Brian Farmer via the Press Association, which can be seen at the original link and is now titled : Grandparents lose next step of court fight to stop grandchild they didn’t know existed being adopted. Still waiting to hear back from The Sun and their article is still live and unamended.]

[Update : 25 Oct 16 : On 18 October The Sun confirmed they would amend their post. They did so on 24 October. We have pointed out the article is still showing as published on 6 Oct by Yasmin Jeffrey, and asked them to amend the article to show it was edited later in October. They have agreed to do so. See here.]