Last week BBC News and the Guardian reported the important public interest story of a father’s unlawful immigration detention, that left his three-year-old unnecessarily in care and at risk of a plan for adoption, despite the family court declaring they should be reunited. (The Independent reported the wider Home Office policy trends).

But just how close did this three-year-old girl come to adoption? (And how much do any inaccuracies in the reporting matter?)

BBC News

On the issue of just how close this particular child did come to being adopted, the BBC are notably accurate, compared to the press release and website news item from the legal firm that represented the father in the judicial review (JR) proceedings, and also to the ambiguous drafting in the court-approved ‘Statement of Reasons’ for the July 2018 Order settling the JR claim against the Home Office.

BBC News said simply and accurately (without any apparent loss of a hard-hitting story):

Without legal intervention, the child could have been placed for adoption.…In July 2017, a family court judge endorsed the local authority’s plan for AJS to look after his daughter, saying that, if he was not released within four months an application would be made for the girl to be placed for adoption.

The court… warned that if [the release] did not happen, the girl would have to be placed for adoption.

Which  makes it most unlikely the family court would be in any position to even warn the Home Office that she would (as a matter of fact) have to be placed for adoption if he wasn’t released, whether eventually, or specifically by the deadline date for issue of an application.

The press release and website news items

No doubt the Guardian quite reasonably took their lead from the press release on behalf of the father, where the inaccuracy first appears, whether for brevity, maximum impact or lack of understanding of the distinction. It said:

The statement of reasons

Even the written reasons endorsed by the High Court seem ambiguously drafted at paragraph 3, by comparison to the apparent technical accuracy at para 6, seeming to imply that the father was released days before the court was to decide on her adoption (or at least her placement for adoption):

[he] was not released until…days before the deadline for [her] proposed adoption (paragraph 6, Statement of Reasons).

What actually happened

‘AJU’, the child’s father was released from immigration detention (on an unlawful tag and curfew), on 21 September 2017, nine days before a deadline of 2 October, that the family court had set in July, for the council to issue an application for a placement order, if he wasn’t out by then. This application would have then been listed for hearing and IF later granted by the court, would have permitted the council to find adopters and place her with them. She wasn’t about to be adopted. Or even about to be placed with prospective adopters. That process would have taken months.

By the time this story hit the media, because the subsequent JR proceedings had settled (on all but the amount of damages payable to the child herself – listed for hearing two days after the press release and ensuing coverage), the reunification was underway and being tested out.

Do the technical inaccuracies matter?

Well, all of this doesn’t of course take anything away from the outrageous fact that this three-year-old was in care for (we think) some seven months when she didn’t need to be, because her father was unlawfully detained for three months, and then subjected to an unlawful tag and curfew for another four months (apparently delaying the reunification at least for a period) – with the possibility of an adoption hanging unnecessarily and unfairly over their heads.  It’s hard to over play the impact of the fear and stress this must have engendered.

It is still perfectly reasonable to say what the father’s solicitor said, even with accuracy on the actual facts:

“The litany of unlawful conduct in the case and how close this child came to the catastrophic outcome of adoption is truly shocking”

She was after all (back in September 2017) just 11 days from the council ISSUING an application that would, if eventually granted, have been highly likely to have led to the draconian and irreversible outcome of her permanent severance from her biological family by adoption, against their wishes.

The technical inaccuracies do not take anything away from the vital importance of the timely and robust JR proceedings on the father’s behalf to achieve his release. It’s also important that the media reported his story, and apparent trends in the direction of such Home Office behaviour, in ways that got published and hit home with the public.

The inaccuracies may also tell us quite a lot about just how impenetrable, easily misunderstood, and difficult to communicate succinctly the language and process for adoption of a child from care is. Even to the legally trained non-specialist, never mind the public, the (often) vulnerable parents involved in such proceedings, or the media who must somehow try to simplify and explain them to the public, without slipping into significant inaccuracy.

Splitting hairs?

Are we just ‘splitting hairs’? Is the Guardian saying that the family court warned she’d be placed for adoption, if he didn’t get out, a significant inaccuracy? Perhaps not, since they imply rather than specify this in relation to the deadline date the family court set, rather than some unspecified future moment if he remained locked up.

But is it ok for online news items / press releases to inaccurately say she was ‘days’ from being adopted or placed for adoption?

We think the terms do matter and the clearer the explanation, the better for everyone.

Public confidence

It’s of great consequence in matters of public confidence and trust in courts and social workers, if people are misled into thinking the family court would have ordered the child adopted in the face of evidence that another government department was unlawfully detaining her father while his solicitors were actively taking all reasonable steps to challenge this. This would be wrong, even allowing for the fact that the family court has no power over immigration decisions; can only work with the available options; and can only adjourn beyond a six- month time limit with specific reasons on why this is necessary for justice to be done, in terms of the impact of delay on the child. We don’t know, for example, if the family court had already extended the usual six-month limit on care proceedings in July 2017, when setting the 2nd October deadline, as seems likely, or whether it did so at an early hearing.

Or as one Transparency Project member, Sarah Phillimore put it:

It would be unlawful to make a placement order without proper welfare analysis and if the father is prevented from putting himself forward due to an unlawful act of another government department, the Family Court would not simply allow that circumstance to railroad an order that wasn’t in keeping with the Adoption and Children Act 2002.

I appreciate that these may appear dry and dull distinctions to someone who isn’t a lawyer but it is important for people to try and grapple with them. This fundamental confusion over the role of the courts – i.e. they just rubber stamp a request from a social worker – is at the heart of so much distrust of the system.

Things would undoubtedly have looked very different if family, immigration and judicial review lawyers hadn’t worked closely together to ensure a robust JR claim was lodged in time against the detention.

The factual record

It matters if court-endorsed written reasons are unclear too, since they act as a factual baseline going forward.

The need for parents to understand in time

Perhaps most importantly, it matters if parents or those guiding them don’t understand the difference between the technical terms and their very different and serious legal consequences. For an accessible guide on these, framed with parents wanting to meaningfully avoid or oppose adoption in time in mind, see: I don’t want my child to be adopted at Child Protection Resource.

The family court judgment

It would be useful to see an anonymised judgment from the final family proceedings hearing, and update this post if need be. Back in October, the reunification seems to have still been being tested out and we don’t know if this was under an adjournment or after a final order was made. The judgment from any final decision won’t fall for publication under the Transparency in the Family Court Guidance, if that final decision was uncontested, unless the judge thinks it’s in the public interest (perhaps on application of a party or member of the press) and that publication is not outweighed by some other compelling factor, such as a risk of harm to someone.