Re W (Adoption: Contact) [2016] EWHC 3118 (Fam) is a family court decision by Cobb J in the High Court. The judgment explaining this decision has just been published.

The case

This was the re hearing of a decision about whether a (by then) 2 and a half year old girl who had lived with potential adopters for 2 years should be adopted or moved to grandparents she didn’t know, but who were caring successfully for her younger brother and who hadn’t known she existed, through no fault of their own.

It followed an important Court of Appeal judgment Re W (A child) [2016] EWCA Civ 793) that said the original Judges decision (Re W [2016] EWHC 2437 (Fam)) to order that the child should be removed from the potential adopters and placed with the grandparents under a Special Guardianship Order, was wrong and must be re heard. The Court of Appeal found the Judge had wrongly applied the law and proceeded on the basis of inadequate expert evidence about her attachment to her current carers and the potentially serious consequences of severing those.

The media were interested in this case because of the sense of injustice it provoked on behalf of the grandparents and the sense of something being very wrong with the functioning of child protection system for this situation to have arisen. Social workers because of a sense of injustice on behalf of the child about the first decision to remove her from her ‘parents’ as she now knew them.

The law

Lawyers were interested in it mainly because the Court of Appeal said there was no legal starting point (presumption) that a child should be placed with her birth family, once that child had become settled elsewhere.

More detailed discussion about the Court of Appeals clarifications of the law on non consensual adoption in such cases and the wider legal context can be found at Suespicious Minds and the very accessible speech of Lord Justice Mcfarlane to the Family Law Bar Association “Nothing Else Will Do”. A second Suesspicious Minds blog on the re-hearing is here.

The decision

Cobb J decided that this child’s interests for the rest of her life required the adoption to go ahead, based principally on new expert evidence that a move from her established attachment figures to strangers after 2 years with them, carried real risks of long term emotional and developmental harm, by comparison with the risks to her long term identify of not growing up in her birth family; particularly since direct contact was agreed.

The unusual feature of agreed face to face contact after adoption

Unusually for non consensual or ‘forced’ adoption, the adopters agreed that face to face post adoption contact between the child and her birth grandparents and brother was likely to be in her interests and should be tried.

Transparency and accurate media reporting

The Transparency Project were also interested in the case since we blogged here about the confusion late publication of the judgment of the first instance hearing had caused to newspapers who didn’t realize it was the same case as that already sent back for re hearing by the Court of Appeal and reported the grandparents succeeding. (We hope to consider this and other practical barriers faced by journalists in reporting family law during an event with the media and others from the family justice system in the New year).

We have seen just 2 mainstream media reports about the re-hearing decision. The Daily Mail here. And the BBC News here.

The importance of adequate searches for potential wider family and friends carers in the pre proceedings stages, for children to have a realistic chance of growing up in their families of origin

 The BBC Online report astutely picks up on what some might say is a missed learning opportunity from this case, quoting Cobb J as follows:

“I should record that the paternal grandparents express anger at the [first] local authority for failing to take the relevant steps to trace them when proceedings were afoot in relation to [the girl] in 2014.”

“They feel, understandably, that things could have been so different had rudimentary steps been taken.”

There was plainly some good practice in this case in respect of the child’s time frames. The care proceedings were issued promptly and able to be concluded within the 26 week time target for children. The child was matched and placed with suitable intended adopters without delay after the placement order was made.

She had already been living with them for a year (2/3rds of her young life) even at the point the grandparents became aware of her existence and made their application in December 2015. The outcome-changing delay for this child was undoubtedly the pre birth planning period, followed by 6 months of care proceedings, followed by a further 12 months without her grandparents ever being traced for her.

What is far from clear is:

• How the Court of Appeal statement that “social services had attempted to identify relevant family members but, due to the non-cooperation of the parents and the maternal family, the social workers did not have any knowledge of the paternal family and were, consequently, unable to trace them” sits with Cobb J’s more neutral summary of the relevant background: “The parents had not identified, or assisted the Local Authority in locating, any possible alternative carers within the family; accordingly, the order specifically recorded that “neither the mother nor the father have put forward any alternative family member to be considered as a carer for [A]”;
• Or how either sit with the observation of Cobb J directly quoted in the BBC online report that: [The Grandparents] “feel, understandably, that things could have been so different had rudimentary steps been taken.”

• It would be interesting to know what  ‘rudimentary steps’ to identify potential wider family carers were taken by unnamed Council 1 as required by statutory guidance?
  • What established policy or model of tracing birth families did Council 1 have in place or follow?
  • Was a genogram completed and annexed to the court application as it should have been and a record of discussions with then family completed and placed on file as required by Practice Direction 12A (Public Law Outline)?
  • Did Council 1 consider a Family Group Conference as soon as they thought removal was likely as guidance requires (para 24 Court Orders and Pre Proceedings for Local Authorities, DfE, 2014) and, if so, did they offer one during the pre birth child protection assessment and planning stage? (It is common for parents to decline to share information about relatives whether due to poor relationships or fear that doing so makes their own chances weaker. FGC Co-Ordinators are trained to manage such routine complexity)
  • Did Council 1 ensure the parents with learning disabilities had access to an advocate or lawyer during the pre birth proceedings? Was the pre proceedings process triggered pre birth? (The original judgment of Bodey J tells us that the parents twice had contact after the birth and removal before disengaging with the care proceedings and going missing for a while and that the town that council records said the grandparents lived at was wrong).

• What, if anything, did the second (unnamed) authority do differently by way of basic checks, use or working with parents, such that in the second proceedings about her brother social workers found the grandparents, assessed them positively and placed the sibling with them?

There is nothing to indicate the parents were any easier to work with, (the second pregnancy was concealed). But Cobb J tells us that “In the search of a family placement for J, this second local authority traced the paternal grandparents and identified them as potential carers”. The Judgment of Bodey J tells us [they] “made the usual enquiries to see if there were any extended family members”

• Did the guardian or court scrutinise the ‘record of discussions with family’ Council 1 should have had on their records or consider whether any other steps to trace key birth relatives were required once the first interim care order had been made?  It seems that for much if not all the care proceedings neither a parent nor any other relative was a party.

Family Rights Group have for some time highlighted the importance for outcomes for children and families, of effectively identifying and assessing birth relatives in pre proceedings, in accordance with statutory guidance.  They are lobbying for an amendment to the Children and Families Bill to provide for a legal duty on councils (beyond guidance) to identify and assess relatives and offer a Family Group Conference at the point they first think the child may need to go into the care system.

Increased accountability may also be required in respect of some decisions taken by councils long before the scrutiny of Guardians and Judges, where plainly likely to alter the outcomes (for babies and young children in particular) by the time of final hearing. Including failures to search adequately for birth relatives or to predict need for early specialist mental health assessment and treatment for parents etc. All are matters that the local government ombudsman can potentially investigate and collate findings from to inform the national picture where not capable of being interrogated through family or other court proceedings.