Malvika Jaganmohan is a pupil barrister at Coram Chambers, a specialist family law chambers in London. She tweets as @MalvikaJaganmo1

All paragraph references in bold refer to the judgment which is publicly available on Bailii. 

Background

The case of Foster Carers v A, B and a Welsh Local Authority [2019] EWFC B52 (27 June 2019) is a heart-rending example of the human suffering caused by a Local Authority that really should have known better.

In brief, the birth parents of the child, A, already had four children. They previously had some involvement with the Local Authority; the older four children had been placed on the child protection register under the category of neglect. However, they were removed from the register under a year later. The parents made and sustained positive changes, there were no further safeguarding concerns and the case was closed. 

The birth parents had briefly separated and they felt that it would be better for them, their other children, and for A, to “relinquish” their child for adoption. The mother felt that another child would be too much pressure. The parents did not want the child to be raised within the family, as the mother thought it would be too difficult for her to watch A being raised by a family member. 

When the mother told the Local Authority social worker (SW) that she wanted to relinquish the baby, this was immediately accepted by the SW as for the best and prospective adopters who would care for A from birth were identified. The applicants – A’s carers – were unable to have children together. A was a desperately wanted child. She was placed with them at three hours old and had been with them ever since. 

Cracks soon began to appear. On the date of A’s birth in July 2018 the mother had struggled to leave her and was visibly upset. Just a week later, she requested another contact with A as she did not feel that saying goodbye was enough closure and asked for A’s umbilical cord. In late September 2018, the mother met with the guardian to sign the relevant consent to relinquish A. Given her visible reservations, the guardian advised her not to sign and to seek legal advice. The guardian wrote an email (it is unclear in the judgment to whom) the following day recording: “Clear that the parents want A to be returned to their care.” In short – the parents changed their minds. 

This is where things started to go terribly wrong. The mother was told in October 2018 by the social worker that if she changed her mind about relinquishing A, then an assessment would need to be carried out which would involve the other children. Francis J was unequivocal in stating: “This was as devastating for the mother as it was incorrect”. It is not hard to imagine just how terrifying this threat would have been to the birth parents, having previously had social care involvement with their older children. 

In March 2019, the parents indicated, reluctantly, (again, it’s unclear to whom) that they would agree to A being placed for adoption. However, in April 2019, the mother said that she did not agree with the plan and wanted A back. This then prompted the Local Authority to launch care proceedings and to seek to persuade the court that A should be taken into care. It needs to be noted that the Adoption and Children Act 2002 does, in fact, allow for withdrawal of consent (s20(3)) – though of course, in this case, it doesn’t seem that valid consent was given at all. It may be that the Local Authority found themselves in a bind, didn’t know how to resolve the situation, and decided to get the matter into care proceedings so that the court could determine where A should go. 

Care proceedings commenced. At the first hearing before HHJ Garland-Thomas, it was clear that there was an issue around whether the threshold criteria under s31 of the Children Act 1989 were met. For non-family lawyers, section 31(2) Children Act 1989 states that for the court to make a care or supervision order, it must be satisfied that, at the ‘relevant date’:

• the child concerned is suffering, or is likely to suffer, significant harm. 
• That the harm, or likelihood of harm, is attributable to: 
• the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
• the child’s being beyond parental control.

The threshold criteria need to be met before a court can make public law orders such as care orders. (See also Transparency Project blog post on the threshold criteria for more information). 

The Local Authority sought to argue that threshold was met because there was a likelihood of A suffering emotional harm caused by her being relinquished at birth, and not having had contact with the birth parents since October 2018. This certainly seems like the Local Authority was clutching at straws. As I noted earlier, the parents were perfectly entitled to change their mind about giving up their child for adoption (though, of course, it does not seem that consent had been given validly in the first place). 

The Local Authority put forward a number of different ‘relevant dates’ when they said that threshold was met. At first, they said the relevant date was A’s birth date on 4^th July 2018; they then said it was 3^rd April 2019, which was the date when the mother said she wanted A back in her care; finally, they landed on 25^th September 2018, which is when the mother originally changed her mind. 

The judge found that the only date that could possibly be ‘the relevant date’ was the date of A’s birth. Any other date would be “an artifice seeking to place some blame on the parents for their change of stance”. [para. 33] Ultimately, the judge did not agree with the Local Authority that threshold was met and her judgment brought the ill-fated and anxiety-inducing care proceedings to an end. 

At this stage, A’s carers clearly panicked about the prospect of A being removed from their care, sought legal advice and brought two applications: the first concerned the issuing of wardship proceedings and the second was an application for permission to make an adoption application. Wardship refers to the child being made a ‘ward of the court’, which means that the High Court has ultimate legal guardianship over the child.  The court obtains parental responsibility for the child and no important step in respect of the child’s upbringing can be taken without the court’s consent. With the Local Authority having failed to establish threshold for the making of public law orders, the carers needed another mechanism to continue A’s placement with them, hence the issuing of wardship proceedings pending any application for an adoption order. 

The legal issues 

One of the issues centred around whether A’s placement with the carers was a ‘foster to adopt’ placement. (There is a very helpful ‘Foster to Adopt’ Practice Guidance written by Sarah Coldrick, Legal Consultant for the Association for Fostering and Adoption (AFA) Cymru. Thank you, Dr Julie Doughty of Cardiff University for pointing me to this!) A ‘foster to adopt’ placement is designed to have children live with their pre-approved, prospective adopters as soon as possible, preventing them from being moved from carer to carer. The prospective adopters are assessed as temporary foster carers for the child so that the child can be placed with them. 

Francis J accepted that the parents were not consenting to A’s placement and that, in any event, any consent that they had given did not comply with the formal requirements of the law (see s52(7) of the Adoption and Children Act 2002). HHJ Garland-Thomas found that for a foster placement to qualify as a ‘foster to adopt’ placement, the relevant law in Wales requires that the carers are approved under both the Adoption and Fostering Regulations (as approved adopters and as temporary foster carers); that care proceedings are initiated and there is a placement decision; that the child is placed with the carers as a foster placement at the start of care proceedings, and there is a matching panel recommendation (this is self-explanatory – a panel that makes a recommendation about the match between the prospective adopters and the child). None of these legal requirements had been met. As such, HHJ Garland-Thomas found (and Francis J agreed) that the placement was never a ‘foster to adopt” placement and was – contrary to what the situation on the ground may suggest – a short term foster placement. 

“The unarguable position at the moment is that A is in short-term local authority foster care. No consent to placement for adoption nor adoption order has ever been given, and no matching panel has taken place.” [58]

The court found that the Local Authority had a duty to discuss the issue of relinquishing A with both parents in detail before accepting their position. By contrast, the social worker here had actively encouraged them to proceed with the adoption and had implied that reneging on this decision would result in an inquiry into their care of their other children. Francis J observed that the relevant law requires the Local Authority to provide pre-birth counselling to the mother and, after the birth, the social worker must explore with the mother whether she still wants to proceed with the adoption. He concludes that the Local Authority must do whatever it can to ensure the child is brought up within her birth family if at all possible. [para. 22] Instead, the Local Authority – in the face of the parents’ clear reluctance and expressed wish to have A back, ploughed on as if their consent was still on the cards. 

Francis J concluded:

“It is clear that, had the local authority carried out its statutory duties pursuant to statute and regulation, from at least 26 September 2018, these proceedings would not be happening. It is overwhelmingly likely that had that action been taken last September, as I have said just over nine months ago, the parents would have been rehabilitated with A and the carers, however sadly, tragically and reluctantly, would have conceded this. It is almost beyond belief that we are now some nine months later. Who can possibly blame the carers now for bringing the applications that they do, both within wardship proceedings and for seeking leave to bring the adoption application?” [50]

Given that the applicants were Local Authority foster carers, A needed to have lived with them for at least a year before they could make an application for an adoption order. (s46(4) of the Adoption and Children Act 2002) Because A had lived with them for just under a year, they needed the court’s permission to apply for an adoption order. In seeking permission to apply for an adoption order, the carers needed to persuade the court that there is a real prospect of their eventual application for an adoption order succeeding. 

Francis J was clear that this was not a case of deciding which set of parents would be the better set of parents to A. The courts are not in the business of social engineering. At this point, I’ll pop in the well-known Lord Templeman sound bite from Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806:

“The best person to bring up the child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.”

Francis J also made clear that the question is not, “why should A be reintroduced to her birth parents” but “why should she be prevented from being in the care of her birth parents?” With the care proceedings having been firmly shut down, there was no basis on which the court could find that the parents are anything other than “good enough” parents to the child, as we say in family-lawyer speak. Adoption is a last resort and the parents wanted A back. 

On this basis, Francis J dismissed the applications and determined that A is to return to her birth family. One can only imagine the carers’ devastation at this outcome – devastation which was entirely avoidable. 

On anonymity

Interestingly, the judge did not identify the specific authority itself. It is unclear why –  given the very strident criticism of the authority (“the human misery caused by the failings of this local authority are almost too much to bear” at para. 54) – it has not been identified. 

The 2014 guidance on the publication of judgments by the former President of the Family Division, Sir James Munby, states that in all cases where a judge has given permission for a judgment to be published, public authorities and expert witnesses should be named unless there are compelling reasons why they should not be named. 

HHJ Middleton-Roy reiterates this in another recently published judgment: 

“The Local Authority is identified by name, the Local Authority being a public body with a statutory responsibility for the welfare and protection of children and support of families. Where that work has resulted in Court proceedings, the Local Authority is held accountable for its actions with families by the Court. The need for a public body to be identified when acting in respect of citizens is important. The Court concludes that naming the Local Authority would carry with it some risk of identifying the children. Nevertheless, having balanced the risks between transparency of justice on behalf of the State where life changing decisions are made for children, and ensuring their privacy, welfare and safeguarding needs are taken seriously and protected, the Court concludes that the public interest in identifying the applicant Local Authority is so important that it outweighs any risk of identification of the children.”

Francis J in this case does not explicitly give any compelling reasons for keeping the Local Authority anonymous. It is clearly in the public interest for Local Authority failings to be publicised so that they can be held to account. Francis J expresses the hope that “there will be a thorough review by those at the top of the legal department of this local authority to consider what failings were made, and how steps can be put in place to make sure that they can never be repeated”. [para. 55] However, it makes it exceedingly difficult for the Local Authority’s efforts in this vein to be scrutinised without knowing which Authority is responsible. 

I could speculate about the reasons why the Local Authority is anonymous. It may be that the possibility of “jigsaw identification” (that is, putting two and two together) would give rise to the risk of the child and family being identified. This is a family of four children with a baby that suddenly returns to the fold – this would no doubt raise eyebrows in the local community and make them easier to match with any media coverage. There are also two families that need their identities to be protected here; given the trauma they have already suffered, the risk of exacerbating this further by exposing their identities may simply not have been worth it. 

It may also be that the judge has some sympathy for the Local Authority. Without using this as any justification for the Local Authority’s actions, he acknowledges that “local authorities work under intense pressure of work and in circumstances where funding has been persistently and repeatedly reduced. The pressure on local authority social workers and lawyers is often intolerable.” [para. 54] Francis J also notes that he can’t comment on whether this case is the failure of specific individuals or a “systemic failure”. [para. 55] He may simply have seen this as a teachable moment for other authorities rather than an opportunity to haul anyone over the coals. Given the highly emotive nature of the case, there is also a risk of opening up the social workers/Local Authority lawyers to significant harassment if they are identified.  

A note on legal aid

The carers’ solicitors acted pro bono (for free). Francis J thanked them “for this act of human kindness”. The fact that the individuals who had been the child’s primary carers for the best part of a year and who now faced the prospect of having that child removed from their care could have been forced to navigate these proceedings without legal representation is a sad indictment of the state of legal aid in the family justice system. 

Image – Kate Tegtmayer at Flickr.com creative commons – With thanks