‘Tomas’ is a two year old boy who was removed from his parents to live in foster care under an interim care order in January 2025. (None of the parties’ real names are used in this post.) In a three-day final hearing in November, care and placement for adoption orders were made in respect of Tomas by Cardiff Family Court.
This is a long blog post but I hope might be useful in giving some insight into contested adoption hearings, which although controversial, are rarely scrutinised by a reporter.
The proceedings had taken 44 weeks, almost double the 26-week limit set down in the Children Act 1989. As we know from the Public Accounts Committee report, cases in Wales tend to take less time than the England and Wales average. There were several complications and other delay factors here, including:
- Appointment of the Official Solicitor for one of the parties
- Interpreters and translators for the parents and extended family. (Three interpreters were required at the final hearing; they seemed extraordinarily skilful with simultaneous translation.)
- A parenting assessment by an independent social worker (ISW) who is expert in working with eastern European families
- Assessments of potential kinship carers abroad; this process was subject to several delays and miscommunications between the relevant agencies and individuals
- Information about parental history sought from authorities in eastern Europe and in England
- Administrative errors in the courts’ centralised public law system that lost track of orders and court dates early in the proceedings
- Significant contradictions in the mother’s evidence over the course of the proceedings
- Lengthy and repetitive presentation of evidence and cross examination by one of the advocates.
I attended four hearings as a legal blogger between August and November. These were all conducted by Her Honour Judge Mererid Edwards. There had already been a number of earlier case management hearings (CMHs) and various delays when the 26 week timetable was extended in August to late September. Eventually there had to be further extensions, as matters became more complex regarding a potential family placement.
Background
Marija and Lukas are both in their early 40s and are nationals of a country in eastern Europe (which I’ll call EE). Marija travelled to England in 2019, before moving to south Wales and meeting Lukas in 2022. Tomas was born in summer 2023. Marija can speak some English but she doesn’t have settled immigration status in the UK and is dependent financially on Lukas because she can’t legally work and has ‘no recourse to public funds’. (However, a parent in care proceedings does have full representation through legal aid.) Lukas has pre-settlement status and is legally allowed to work in the UK until mid-2026, but he is vulnerable to exploitation and I gathered may have been a victim of modern slavery. He can’t read or write in his own language and speaks very little English. (Interpreters were used for the parents throughout the child protection investigation, assessments, and court proceedings). Shortly after the application was issued, Lukas was assessed by a psychologist as not having capacity to conduct legal proceedings. This meant that the Official Solicitor (OS) was appointed to represent Lukas’s interests. Marija and Lukas lived in expensive but inadequate private rented accommodation and were in rent arrears, with no heating. The property was in effect a house in multiple occupation (HMO) with separate unoccupied rooms for several tenants. As a couple, the parents struggled with family life, although everyone agreed that both of them loved Tomas very much.
Tomas’s welfare came to the attention of children’s services in late 2024 through a referral from the Probation Service following Marija’s conviction for criminal damage and assaulting a police officer in England, which she’d been charged with three years earlier. Further concerns emerged when it was discovered that Marija had had three children taken into care in her home country EE and a fourth child born in England in 2020 who had been taken into care in 2021 (I’ll call her Anna). These concerns were heightened by the fact that Marija hadn’t told health professionals in Wales, such as the midwife service, any of this history when she was pregnant with Tomas. She also had an earlier criminal record in EE. Those offences related to excessive drinking and public disorder, including violence to people in authority. The parenting assessment carried out by the local authority in England had concluded that Marija didn’t recognise the impact of domestic violence, had not applied for EU settled status, had not been open and honest with professionals, and was not able to make and sustain the necessary changes to safely care for Anna.
While this evidence was being gathered, a safety plan was put in place to protect Tomas at home, but Marija and Lukas weren’t co operative regarding information on financial and housing matters. The PLO pre-proceedings process was followed. Social workers were making daily unannounced visits and during this time, Marija seemed not to be drinking. However, results of drug and alcohol tests for both parents for the period up to December 2024 showed use of alcohol and various substances (cannabis; cocaine; benzodiazepines) which the parents had denied. The local authority applied for an interim care order with immediate removal of Tomas into foster care. A number of viability assessments and two connected persons assessments were carried out regarding relatives in EE.
Lukas’s wishes and views were represented by the OS Office who instructed local lawyers. The OS communicated Lukas’s wish to parent Tomas with Marija, but that he didn’t think he could care for a child alone. He hoped that his mother (who lived in EE) would be approved to care for Tomas. Because the kinship assessments weren’t looking very positive, the local authority had to consider all the options, including adoption. Marija strongly objected to any possibility of adoption; she was represented by a firm of solicitors and a barrister based in London. The local authority and Tomas (through the Cafcass guardian) each had a local barrister in court.
Potential kinship carers
Marija and Lukas identified Lukas’s mother as their preferred carer for Tomas, if he couldn’t return to them. However, Lukas’s family members were difficult to contact and there was a lengthy series of unclear communications and further questions emerging as possible kinship assessments with both families were followed up. This process involved authorities in EE and help from Children & Families Across Borders – CFAB.
At the CMH in August, Lukas was expecting his mother to come over to the UK and attend a future issues resolution hearing (IRH). Although the local authority’s viability assessment of her ability to care for Tomas was negative, the OS insisted she must have an opportunity to challenge the assessment, which the judge wasn’t happy about as there would be so much more delay. There was quite a bit of confusion about how much of the documentation the grandmother had seen translated and how she managed with email. The judge asked the barrister instructed by the OS whether the OS had been fully briefed on caselaw that discouraged multiple assessments of relatives abroad, and whether the OS understood the Family Court’s focus on the child’s timetable. I think the judge was primarily referring to this High Court judgment, Leicester City Council v The Mother & Anor [2024] EWHC 923 (Fam), in which Mrs Justice Lieven had concluded that lengthy assessments of potential kinship carers abroad was not compatible with the child’s timescale. There’d also been delays because of errors on the part of the HMCTS system for administering cases which the judge said were impossible for her to check. The guardian was generally supportive of the local authority actions and plans, but concerned about the delays.
The judge said that she needed some certainty; the child’s timetable should be respected; she was discharging the local authority from any obligation to further assess Lukas’s mother on the basis of an extremely negative – not just borderline – viability assessment. A deadline was set for any application that the grandmother might herself decide to make.
Lukas’s mother herself paid to travel to Wales a few weeks later. She was introduced to Tomas in supervised contact sessions and accompanied Marija and Lukas to court in a further CMH in September, when some of the issues in the threshold of harm statement were resolved. However, Lukas’s mother had not put in her own application to meet the deadline; her intentions were conveyed through Marija’s barrister. The judge expressed her frustration with the timetable falling behind again. The mother’s lawyers proposed a full assessment to be carried out in EE by an ISW funded by the Welsh local authority. The local authority queried how this could be done in accordance with the legal position in EE. The judge also expressed doubts that the authorities in EE would accept this – ‘an assessment by another government on their own soil’.
The judge described the timetable as having been ‘kiboshed without the court’s permission’. She emphasised to Lukas’s mother that it was essential she get legal advice and consult with other family members in EE about exactly what financial and practical support they would commit to her caring for Tomas. Despite all this, the judge and the guardian both later referred to Lukas’s mother as ‘impressive’ in her motivation to provide a home for her grandson.
A dramatic turn in the parents’ position
However, everything suddenly changed when Lukas’s mother met the guardian and told him she had doubts about Tomas’s paternity and suggested DNA tests. These tests were ordered (the parents had refused their consent) and showed that Lukas was not Tomas’s biological father. Lukas and the OS therefore lost legal aid funding and were discharged from the proceedings. Lukas’s mother had said she wouldn’t offer to care for Tomas unless he were Lukas’s biological son. Lukas remained supportive of Marija.
This was a shock, so late in proceedings, especially as Lukas was reported by social workers as devoted to Tomas; in contact sessions he was observed as being more in tune with Tomas’s needs than Marija was. The OS had stated on his behalf that Tomas was ‘the greatest gift of his life’. Lukas was still going to contact sessions to see Tomas, even though he’d been told the results of the DNA tests and his mother had dropped out. It later became clear from the evidence that Tomas had been born (full term) on too early a date to have resulted from Marija and Lukas’s relationship. I don’t think anyone fully understood how aware Lukas was of the facts surrounding Tomas’s paternity. When Marija eventually reluctantly accepted the DNA result, she said that her previous partner, Mr A, must be Tomas’s father – more on this below.
Threshold of harm
In their evidence on the risks of harm to Tomas, the local authority described Marija’s actions in leading Lukas and his mother into believing he was Lukas’s son and pushing for the overseas placement as indicative of her un-trustworthiness. However, at the conclusion of her judgment, HHJ Edwards said directly to Marija that despite all that had been said and done, she knew that Marija had always been motivated by her love of Tomas.
I’ve mentioned a few aspects of this case that were unusual, but it perhaps isn’t very unusual for parents who are poverty-stricken and have learning disabilities and communication difficulties to find themselves facing care proceedings. From the local authority’s point of view, Marija and Lukas had done little to improve their living conditions or seek family support. They hadn’t been open about their drug and alcohol use. However, the only time I heard evidence of Marija being overtly unkind to Tomas was once when she smacked him at a contact session (following which contact was suspended for a couple of weeks). Following Marija’s recent conviction though, it became highly unlikely she would succeed in any application to settle in the UK. Her situation therefore remained very unstable.
The threshold of harm, as submitted by the local authority, relied heavily on the judgment in the care proceedings relating to Mr A and Marija’s daughter, Anna, in 2021. Anna had been placed on the child protection register at birth and subsequently came to the attention of the police, who had to remove her from dangerous conditions under police powers (section 46. Children Act 1989). Marija and Mr A. were arrested although not charged with criminal neglect. There was a lengthy judgment from the family court in England that included consideration of a comprehensive psychological assessment of Marija. The psychologist had recommended Marija seek long-term therapy to address her ‘well of anger’, but added that this would be unlikely because she didn’t agree that agencies had valid concerns about her. Domestic abuse was one of the issues in the application by the local authority in England; Marija conceded that she had been a victim of domestic violence at the hands of Mr A, but she was not in abusive relationship while caring for Tomas. She further responded that she was no longer drinking alcohol or using any non-prescribed substances.
Observing the final hearing
After some discussion at the beginning of the final hearing, the judge agreed that Lukas (who was in the court building but had no status in the proceedings) could sit in court next to Marija as a supporter, although she said she was ‘deeply uncomfortable’ about Marija’s barrister making representations on his behalf. He didn’t have an interpreter so I’m not sure he understood much but I assume the judge didn’t want to spend more time on that point, and Lukas was always quiet and unobtrusive.
I found the hearing quite disturbing as it progressed. I’ve seen advocates being very assertive with witnesses, and sometimes with a judge, especially when their client faces losing their child. However, I hadn’t previously experienced in a family court the level of hostility and disrespect that I observed build up during this particular hearing. Although we have an adversarial system, as anyone who’s been in court will know, the advocates are usually very deferential toward the judge. However,in this hearing Marija’s barrister often cut across and interrupted the judge while she was speaking and largely ignored her suggestions and requests. The judge is able to ask advocates to spend less time on irrelevant points because court time is so precious – every wasted hour in one case reduces court capacity to make decisions in another child’s case, More worrying than simple rudeness, was that the barrister led the court down a number of ultimately unhelpful byways, as will be seen from my summary below.
I don’t think for one minute that the outcome of this hearing for Marija and Tomas would have been any different if Marija had instructed a different barrister. Nor do I think it inappropriate for an advocate to take a strong approach when acting for a parent who might lose their child. The judge called the cross-examination of the guardian ‘oppressive and overbearing at times’, but all three professional witnesses were very experienced and they remained composed throughout, and none of them appeared hugely disturbed. As an observer, I was quite puzzled by this barrister’s approach, and often found it difficult to differentiate her own views from those of her client.
Evidence was given by the ISW, the local authority social worker, Marija, and the guardian.
The ISW
The ISW appointed by the court to provide an expert parenting assessment specialised in working with families from Eastern Europe. She had been identified as a suitable independent candidate by Marija’s solicitors, to which the other parties agreed, and she was then commissioned by the local authority but spoke very firmly about her independence, when challenged about this by Marija’s barrister.
The ISW said that had Marija originally told her that she had come to Wales alone, to escape Mr A, and so she was astonished on reading the court bundle to discover that they had moved to Wales together and were at one time living at the same address as Lukas. She agreed that Lukas was supportive and that the couple had presented as having a well-established relationship. However, she was concerned that they weren’t doing anything about their housing situation.
Marija’s barrister at this point made a comment about Tomas’s parents ‘not being Guardian readers like you or me’. (I wondered how the interpreter translated that observation to Marija.) The ISW responded that she was familiar as a professional with the vulnerability of some Eastern European families who can be taken advantage of because of their circumstances. There was lengthy questioning about the strengths of Marija and Lukas’s parenting but the ISW reiterated that Marija still hadn’t recognised the risks of harm to Anna or to Tomas, nor had she effectively distanced herself from the likelihood of relapsing into excessive drinking. This was demonstrated by her seeing no problem with Lukas drinking several beers at home in the evenings. The ISW reported in quite some detail on the rehabilitation programmes Marija had attended in EE, but how their effects had been short term.
The ISW had reported that that the parents’ ‘lack of insight into their past behaviours and the associated harm is a significant barrier to change and presents a considerable gap in their ability to parent effectively’. Her assessment had concluded that Tomas ‘returning to his parents’ care at this stage would not be safe or appropriate’. While she was in the witness box for two hours she did not vary from this conclusion.
The social worker
The local authority social worker (who I’ll call Ms SW) confirmed her statements and added that she’d observed a good relationship between Tomas and Lukas. Despite the paternity result, letterbox contact with Lukas was proposed. (Considering Lukas can’t read, I’m assuming there’s a more modern format for “letterbox” although this term is still used.)
Marija’s barrister questioned Ms SW as to whether she had investigated the possible biological connection between Tomas and Mr A and also whether she’d investigated any possibility of placing Tomas with Anna in England. While Ms SW didn’t discount this, she pointed out that there’d been limited time since it had emerged that Mr A might be Tomas’s father. The local authority efforts had all been directed by Marija and Lukas toward their own extended families. She said that wider knowledge about Tomas’s heritage would be considered when developing life story work with him.
Most of the cross examination was understandably about the local authority adoption plan. Questions were put to Ms SW about Tomas being a ‘hard to place’ child. Ms SW didn’t agree, although the plan was for an extended period to search for a suitable adoptive applicant, of up to 18 months. Ms SW explained that this was because the local authority would seek a culturally matched placement, which might take some time, and that a scheduled autism assessment for Tomas might also need to be taken into account. Marija’s barrister asked Ms SW if she was ‘slavish’ and ‘ideological’ about adoption, ‘like social workers are in London’. Ms SW replied that the plan was realistic and in Tomas’s best interests at his age. She explained about statutory reviews of the plan. This exchange continued for quite a while, although the judge said ‘This is not helping me’ at various intervals. The topic then moved on to post-adoption contact proposals and more questions on why Ms SW hadn’t done more to investigate Anna’s placement.
Eventually, the judge pointed out that Marija herself would have information from the English court and local authority about what happened after the care order; she said that Marija’s barrister should have taken instructions on this. The judge wasn’t happy about the time this ‘new information’ was taking, nor was she happy about some observations made about the adoption process regarding planning and matching. There were a few comments from the judge about how ‘this is not how we conduct proceedings here’.
The local authority barrister confirmed some information with Ms SW about Tomas’s current foster placement, that he was well settled there and that the carers were approved as long-term carers: important considering the possible length of the matching process.
Fortunately, the next morning, the local authority reported that they had been successful in getting replies from the English local authority about Anna; an adoption order had been made in early 2023. So that helped matters move on. However, the last known address they had for Mr A was an old one. Neither Mr A nor Marija had taken up the twice-yearly letterbox contact that had been offered for Anna alongside that placement order. I didn’t think an adoption order could have been made without Marija having been given notice, but this wasn’t queried.
The mother’s evidence
This got off to an unusual start when Marija’s barrister asked her client the standard question about confirming the written statements that had been filed on her behalf, because Marija responded denying ever having seen one of these (dated back in March). Time then had to be spent deleting parts she claimed weren’t true. The correct practice is for the lawyer who takes down the statement to use the client’s actual words and ask the client to read it through, confirm it’s true and then sign it, before it’s filed at court, Marija’s barrister was apologetic and said the early statement had been filed by a different solicitor, but the local authority barrister informed the court that all three statements had been prepared by the same firm. More apologies followed.
Asked about Tomas’s paternity, Marija said his father must be Mr A, although she maintained that she hadn’t realised this until she was told the DNA results (in late October). Marjia’s barrister asked her many questions about Tomas’s (good) health record although the judge said this was ‘simply wasting time’. I think this was because it wasn’t an issue in dispute and it was no help to the judge in deciding whether Marija can care for Tomas now. The judge encouraged the barrister to move on because she was very concerned about the length of time Marija might be made to stay in the witness box. There were quite a few contradictions, such as Marija saying no one had spoken to her about Tomas’s settled status (the local authority having already stated that they were continually trying to get Marija’s solicitors to help them with this). Marija said she could rarely get hold of Ms SW, although there was considerable evidence already before the court about their several meetings.
Despite lengthy presentation of Marija’s evidence, and rapid translation, there wasn’t really any progress toward learning how she now felt about local authority concerns regarding either Anna or Tomas, nor the implications of Mr A being Tomas’s father or how she felt about that. Marija remained steadfast about having believed Lukas was Tomas’s father, the strength of their relationship, and their belief that they would provide him with a loving family.
The cross examination by the local authority barrister went through the main points in the threshold statement. One of his questions was about Marija having said during the English court proceedings that she knew how to run away from children’s services. Marija replied that the reason she and Mr A had moved to Wales was for work opportunities. The barrister also had some questions about how likely it was that Marija had been confused about her pregnancy dates, having experience of four previous pregnancies. He asked about statements she had made in the English proceedings that she had split up with Mr A as long ago as November 2021, whereas they were still together in autumn 2022. There were several questions put to Marija about her own and Lukas’s alcohol and drug use and why Marija disputed the test results. The cross examination also covered Marija’s rejection of the psychological assessment and of the judge’s findings in Anna’s care proceedings.
This was followed by re-examination by Marija’s barrister that became repetitive and the judge described as ‘utterly unhelpful’ and ‘way beyond what is normal or acceptable in this court’. I couldn’t see the point of re-examination either, especially of this length; it’s quite unusual for re-examination (if any) to take more than a few minutes. The judge was understandably conscious of losing court time, especially as we hadn’t got to the guardian’s evidence yet.
The Cafcass Cymru guardian
The guardian reported on how Tomas was getting on in his foster placement, and his rationale for agreeing that a period of up to 18 months for matching and placement was needed. He confirmed details in his report about Marija having told him she’d fled domestic abuse to come to Wales, and some contradictory statements she’d made about drug taking and drinking. Marija’s barrister challenged the guardian on his level of inquiry into support Marija could have been offered for addiction and local authority duties regarding housing. She often referred the guardian to ‘your plan’ whereas the plan was actually that of the local authority. After a while, the judge said that this line of questioning had been ‘absolutely exhausted’. To my surprise, the barrister carried on until the judge firmly said that the guardian had given his answer several times and that she expected counsel to ‘take a steer from the court’ (i.e. stop when the judge asks her to). However, similar lines of questioning continued, despite a number of objections by the judge. Things then started to get more confused when the barrister referred the guardian to documents that weren’t in the court bundle.
The guardian kept replying that he’d been looking at the family from Tomas’s perspective, although he said that he’d met Marija a third time (he usually met a parent twice) because he wanted to give her an opportunity to correct some of the contradictions in her statements. The barrister told him he was ‘paying lip service to the proceedings’ and cut off his answers, while the judge asked her several times to keep to questions rather than submissions. (There is meant to be a clear dividing line between when an advocate is asking questions of their client or a witness, and when they are putting forward arguments to the court.) The barrister also cut over the judge quite often; at one point the judge told her this was ‘impertinent and extremely rude’.
Despite the tension that was building, I had to smile to myself when the barrister told the guardian that her client was being ‘criticised ad nauseam’ and the judge said ‘we don’t use Latin’.
A problem was that the length of time this cross-examination was taking was seriously eating into the day, with all the parties still to make their final submissions. After Marija’s barrister began asking the guardian why he hadn’t given Marija enough credit for her not being in an abusive relationship, the local authority barrister got up to ask why this was taking so long.
Normally the final submissions are made in order of local authority, parents, guardian, but although the lawyers for the local authority and the guardian said they could fit their submissions into the time we had left, that wasn’t possible for Marija. The guardian’s lawyer’s closing submission was very brief; confirming the guardian’s 20-page final analysis. The local authority’s barrister highlighted aspects of the threshold statement and the care plan. Marija’s barrister had to file written submissions because we’d run out of time.
The judgment
The judgment was delivered online a week later, with an interpreter in a ‘translation room’ for Marija. The hearing took two hours. The judge also wanted the legal principles condensed into a document that would be translated for Marija. She was disappointed that counsel (presumably all three barristers) had failed to follow the rules about limiting the size of the court bundle – ‘this is not how family proceedings should be conducted’.
The final submissions made by Marija’s barrister were based on Mr A being the only person who could be Tomas’s father. Marija wanted to apply for an adjournment in order that the local authority find him so that further enquiries could be made about family placements. However, the judge said that Tomas’s father was unidentified; until shortly before the final hearing Marija was insistent that Lukas was Tomas’s father. It could not be in Tomas’s best interests for further delays to search for Mr A, who had never engaged with life story work or letterbox contact for Anna and who Marija had always blamed for Anna being taken into care.
In summarising the local authority’s evidence of the section 31 threshold criteria of significant harm, the judge referred to a 70-page judgment in Anna’s care and placement proceedings having almost identical themes. She noted that Marija had cancelled several contact sessions with Anna before she moved to Wales.
Referring to the oral evidence, the judge described the ISW as extremely professional, her evidence fair and balanced. She had done her best to shift Marija’s thinking on keeping alcohol out of the house, and had concluded that there was a high risk of relapse into excessive drinking. Being challenged by Marija’s barrister only seemed to strengthen the ISW’s evidence.
The judge also concluded that Ms SW’s evidence was fair and balanced, and criticisms made about future contact arrangements were unfounded. The standard adoption planning forms had confirmed the intentions of the local authority to offer letterbox contact for Tomas with Marija and Lukas and promote contact between Tomas and Anna, while exploring the possibility of a placement with Anna’s adopters.
With regard to Marija’s evidence, the judge said that she didn’t accept that Marija’s solicitor would have fabricated her first statement. Allowances need to be made for unreliable witnesses, but there were notable inconsistencies between what Marija said at different times about Mr A, and between her version of her circumstances and the findings in the English judgment. The judge was concerned that the most up to date statement filed on behalf of Marjia ‘did not tally with counsel’s account’, by which she meant that there were differences between what Marija’s lawyers had filed on her behalf and what her barrister then argued.
The judge then went on to summarise the guardian’s evidence. He had been subject to two hours’ cross examination that had been ‘overbearing and oppressive at times’. The judge didn’t agree with Marija’s barrister’s submission that Ms SW and the guardian were in an ‘echo chamber’ of ‘professional group-think’ about adoption. (I would have thought that this was self-evident from the extent that the local authority had spent time and money on assessing relatives in EE before making their ‘should be adopted’ decision, and the guardian’s serious discussions with Lukas’s mother.)
The judgment considered the realistic options for Tomas. These all needed careful consideration and weighing up of the respective advantages and disadvantages. Each item on the welfare checklist was also applied. The judge concluded that adoption would best meet Tomas’s welfare needs. The local authority care plan was approved; Marija’s consent to a placement order was dispensed with; care and placement orders were made. (Although Lukas’s name was on the birth certificate, I gather that the local authority would be obliged to apply to correct this. His consent was not required.)
A tangled web
I could understand why Marija might believe that if she could show she was free of drink, drugs and violence for a sustained period, she could ignore the past and convince everyone that Tomas would be safe with her. An optimistic view might be that she was ‘moving on’ from her previous lifestyle. However, the local authority, ISW, and guardian believed this attitude meant she hadn’t acknowledged her own responsibility for the damage her older children had suffered, and she continued to blame others for their removal. If she had been honest with professionals when Tomas was born, there might have been an opportunity for her to show she wanted to change and work collaboratively with them in Tomas’s welfare. The tragic flaw was that Marija’s dependence on deceiving Lukas trapped her in a pattern of lies that had caused serious delays and disruptions in planning for Tomas’s future, even if, as the judge said, her motivation had always been her love for her son.
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