Tag Archives: adoption

Seeking help for adopted children should be safe

Living with the long term effect of abuse and neglect.

This is a post by an adoptive mother, who shall remain anonymous.

Adoption is a cornerstone of social policy in the UK for children living with abuse and neglect, and without legal reform, adoptive families are at high risk of having their children removed as a crisis measure when they seek help for a child’s extreme difficulties as a result of earlier abuse/neglect. This piece is written by an adoptive parent and many of the experiences described may be common to parents of children with disabilities including cognitive disabilities and mental health difficulties, who seek help in the form of respite or specialist support for challenging behaviour.

A new round of joint targeted inspections by Ofsted, the Care Quality Commission, and probationary inspectorates into the impact of childhood neglect, will have begun this month focussing on middle age children (age 7-15) who are at risk of exploitation and/ or showing challenging behaviours (Community Care, 17th April 2017). The impact of childhood neglect may last a lifetime and it is not clear whether the inspections will focus solely on children whose needs for love and care are not being met currently and children that may have entered the Care system for reasons of neglect and abuse, and they and their carers are living with the effects of previous neglect.

As an adoptive parent I know that neglect can occur in isolation but often involves abuse too. Concerns were raised by the Selwyn report (2014) about adoptive families accessing appropriate support for what can be extremely challenging behaviours, well beyond the bounds of normal parenting, stemming from abuse and neglect. The report identified that parents struggled to access services, especially crisis support, and that children’s disabilities are often not recognised or acknowledged in adoption, in terms of accessing post adoption support and services, even for relatively well known conditions such as autism.

My son experienced profound early life neglect and abuse. When problems emerged in the early years of adolescence and I reported problematic behaviour that was clearly related to my son’s abuse history, it seemed removal, which neither my child or I wanted, was the only option considered by the authority. Only after a period of several years, and a number of court proceedings, did my son return home with no public law orders in place, and when this happened our reunification was not planned or supported. We found ourselves back to square one, albeit with a capped Adoption Support Fund, that we had been unable to access whilst my son was living away from home. The Pathway team say that their support, which runs out 6 months after Supervision Order discharge, is not for young people like my son, who live with their family. As a result of our family’s experiences I believe that the child protection system, particularly as it relates to adoptive families, needs to change. It seems too divisive of parent and child and totally unsupportive of parents reporting and seeking help.

These are my thoughts.

Reporting of problems needs to be safe

There should be an expectation of support for parents dealing with challenging behaviour, especially in the child’s middle years when the repercussions of removal can be life altering. We cannot have a situation – which we have now – where there is fear to report the problems because the consequences of reporting may be worse than keeping silent.

Recognition that removal of the child brings its own new set of problems

Removal of children from their home and family, sometimes, at a great distance, may solve the problems (although this may be necessary), but more problems may be created when the focus remains almost exclusively on risk and if intervention continually comes between parent and child. Risks and benefits need to be carefully considered, with parents involved, and both short and long term outcomes need to be thought about.

Children can be traumatised by their removal from family, feel rejected and frightened by the enormity of what is happening to them, and they can express their frustration towards those it is safest to do so with – their parents. There will be a natural move towards independence in adolescence and parents can be pushed away by their child and at the same time find themselves marginalised by the responsible authority. Identity issues come to the fore in the middle years, and in adoptions, the approaches taken can push a child or young person to seek contact with birth families. This is in itself an emotionally intense situation to deal with and the reasons for the child being taken into care may have not been addressed. Risks can be far greater than they ever were before.

Recognition that reunification can be problematic after a child has been in care

One recommendation of the Selwyn report was that reunification should never be ruled out – but coming together as a family can be problematic after a child is living away from home, especially after a Care Order is made, for example, if secure accommodation was needed.

Law orders and court proceedings should not be an obstacle and barrier to family life for the child, particularly children living with neglect. Family life, and parental love can offer protective benefits and ameliorate risks associated with neglect.

Reunifications can be especially challenging if a child has suffered corporate trauma or negligence as a result of their being in care and it is highly unlikely this will be recognised by the agencies involved.

Infrastructure change and new models of support are urgently needed

New models of support are required, to support the family as a whole, when middle age children exhibit challenging behaviour resulting from neglect, trauma, disability and cognitive impairment. Timely respite and periods of separation may be necessary and it should be much easier to come together again afterwards. Infrastructure and legislation must support partnership working with agencies and authorities. It is regrettable in my view that adoptive families cannot access the ASF (Adoption Support Fund) – administered by Mott MacDonald, if there is no intention to reunify on the part of the local authority – and that this fund, recently capped at £5k, is only accessible through the local authorities. Effectively this can mean that adoption support via the ASF is potentially not available to the adopted children and families that need it most.

An approach that sees parents blamed and removes children instead of supporting families is not just a systemic failing, which sees the Rights of the Child violated, it is likely to be extremely costly. Residential care costs £3k per week on average according to a recent review by Sir Martin Narey. Parents are key to the future welfare of their children, especially so where there is previous neglect, abuse and disability, and they should be seen as a resource. Committed parents are not adversaries of our children or the state. Legal reform is needed so that we are not treated as such, and the decisions, actions and performance level of agencies can be better scrutinised, with repercussions for organisations where there has been corporate negligence.

Finally, becoming an adoptive parent has been the best thing that I’ve done and I believe in the Care system. I want no child to enter it who does not need to be there and I want the Care system to have the capacity to meet the complex needs of the children who enter it. Without comprehensive change for children in need, at the edge of Care, including children who have been adopted, living with the long term effects of neglect, I believe that this dream of a Care system ‘fit for purpose’ will remain just that – a dream.

Adoption Breakdown – Why is ‘blame’ required? Does the law need to change?

This is a guest post from an adoptive parent who is concerned about what happens when adoptive placements break down and the local authority apply for a care order for the adoptive child. There are obvious difficulties when the legal test to satisfy a care order seems to be based on ‘blaming parents’ by focusing on the impact of parenting upon the child’s behaviour. For many adoptive children who have suffered trauma in their early lives, their behaviour is most likely to arise out of those traumatic experiences and not because of anything their adoptive parents did or did not do.

Making the court process about ‘blaming’ such parents when an adoption very sadly breaks down, does not seem to help any one. Is it time to amend section 31 of the Children Act 1989? Rather than asking the court to look at issues of ‘significant harm’ and ‘beyond parental control’ should we add ‘complex medical or psychological needs’ as reason to justify the making of a care order – and thus put the focus on the child’s needs rather than the parents’ blame. 

Please support our petition for Parliament

https://petition.parliament.uk/petitions/125814

We hope you can help us raise awareness to a petition for parliament.

We have an our adopted daughter (now 14) and unfortunately at the beginning of February we had to give her up for foster care due to her complex health needs.

The LA are blaming us as ‘bad parents’ but we agree with their recommendations to go for family therapy and help with how to deal with difficult teenagers. We are currently in court proceedings and as we have no dispute in the end result of LA going for interim court order, envisage no problems, it is just the way we get there is what we are disputing.

The PC report was written jointly with a student SW (who we really did not see eye to eye with) and also our AD SW, who we get on great (who is fairly new). While we understand a lot is based on opinion, they have based these on inaccurate, misquoted and even fabricated statements we made in the assessment meetings. We understand their agenda but to simply quote these inaccurate facts is simply unprofessional. We have written our objections back to them in writing and it is with their solicitors.

The PLO meeting earlier in March, went well very accordingly to our solicitors and the LA seems almost sympathetic to our situation, so we do not understand why their reports has been written in a such a way. Maybe to actually have something for the judge to approve on their decision?

We have another AD half-sibling, who LA have agreed can stay with us and who is not attached at all to the one who we gave up to foster carer.

The good news is, the foster carer (who are also close by) have agreed to have our 14 AD till she is 18, they are very nurturing and AD has settled in very quickly (as she has attachment condition as well).

I have got a petition actually published in Parliament (No blame approach to adoption) requesting for an addition to the Children’s Act part IV sec 31, which is to add “has complex medical and/or psychological reasons”.

This is the link: Petition: https://petition.parliament.uk/petitions/125814

PLEASE SUPPORT OUR PETITION TO PARLIAMENT

The Judgment of the European Court against Portugal – Soares de Melo

The dangers of ‘absolutism’ when considering the ‘interests of the child’.

Many thanks to Clare Fenton Glynn for alerting me to this recently decided case in the European Court – only a French version of the judgment is so far available but I have run it through Google Translate and this seems a pretty good translation.

Summary of the facts and decision

The case involved a family with (eventually) ten children who were first involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents’ poverty and the father’s absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family’s position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted – then aged 6, 5, 3, 2 years and 7 months.

The mother argued that the only reason to justify the adoption was the family’s poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).

The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is ‘necessary’. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).

The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children’s situation and take the appropriate action.

This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:

Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).

The unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.

The original judgment in French.

For further detailed commentary, see this post from the blog Strasbourg Observers. 

 

The English translation is set out below.

CASE SOARES DE MELO c. PORTUGAL

(Application No. 72850/14 )

STRASBOURG

February 16, 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Melo Soares c. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Motoc Antoanella, Judges,
and Françoise Elens-Passos, Clerk section,

Having deliberated in private on 26 January 2016

Delivers the following judgment voic i, adopted on that date:

PROCEDURE

1. At the origin of the case in an application (No. 72850/14 ) against the Portuguese Republic and one national of Cape Verde, Ms. Liliana Sallete Soares de Melo ( “the applicant”), referred to the Court 5 December 2014 under Article 34 of the Convention Protection of human rights and fundamental freedoms ( “the Convention”).

2. The applicant was represented by MC’re Almeida Neves and P. Penha Gonçalves, lawyers in Algés. The Portuguese Government ( “the Government”) were represented by their Agent, Ms MF da Graça Carvalho, Deputy Attorney General.

3. The applicant complained of a breach of his right to respect for family life as guaranteed by Article 8 of the Convention, due to the application of institutionalization measuring seven of his children for their adoption.

4. On 17 February 2015, pursuant to Article 39 of the Rules, the Court asked the Government to implement interim measures to allow access by the applicant to his children and restoring contact between them time ruling on the case. It also decided that the application should be given priority, pursuant to Article 41 of the Rules.

5. On 1 April 2015 the application was communicated to the Government.

IN FACT

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and lives in Algueirão-Mem Martins.

7. She is the mother of ten children:

– S., a girl, born in 1993,

– E., a girl, born on 20 June 1995

– I., a girl, born on 27 August 2001

– M., a boy, born July 21, 2004

– Y, a boy, born August 22, 2005

– IR, a boy, born October 10, 2006

– L. and S., a boy and a girl, twins, born on 18 September 2008,

– A., a boy, born November 13, 2009, and

– R., a girl, born November 25, 2011.

A. On the procedure for promotion of the rights and protection of children

1. The procedure before the child welfare committee and youth Sintra

8. In 2005, the situation of the family was reported to the Committee of Protection of Children and Youth (Comissão de crianças e jovens proteção) ( “the CPCJ”) Sintra the ground that the applicant was unemployed for four years and that the children’s father was polygamous and often away from home.

9. On 4 January 2007, pursuant to Article 55 of the law on the protection of children and youth at risk (lei proteção das crianças e jovens em perigo) ( “the LPCJP”), establishes the CPCJ agreement to promote the rights and child protection ( “protection of the agreement”) with the applicant and spouse concerning minors E., I., M., Y. and IR for a period of one year. This agreement had read the relevant parts in this case:

“1. The mother will retain custody of minor E., I., M., Y. and IR She will care for them, their livelihoods and ensure their education, training, health and all other interests ;

2. The mother will include:

a) ensure the attendance and punctuality of children in school;

b) ensure the hygiene and organization within the home;

c) ensure routine medical visits or emergency;

d) Ensure that children M., Y. and IR attending children’s structures;

e) (…) seek gainful employment in order to guarantee its financial autonomy. It should present to the entities in charge of the support of this measure evidence about it.

3. The father will have to ensure that the mother meets the above commitments.

4. The father will continue to contribute financially to pay the fee structures for children and primary needs of children.

5. (…) the parents agree to cooperate and collaborate with social workers, accepting their guidelines, recommendations, suggestions and proposals aimed at maintaining living conditions, comfort, and well – being of Defense interests of minors. ”

10. On an unspecified date, the Agreement was approved by the court.

11. On 22 May 2007, a social worker visited the family and found that the apartment where she lived was filthy and that the supply of running water and electricity was cut off for two months due to non-payment of bills .

12. On 31 May 2007 the CPCJ received a new alert because of truancy of I. who was related to the fact that it had to look after her brothers and younger sisters. That same day she hired a promotion procedure and protection of the rights of children and youth at risk ( “the protection procedure”) in respect of children S., E., I., M., Y. and IR

2. The proceedings before the Family Court of Sintra

13. On 26 September 2007 the CPCJ sent the file to the prosecutor’s office at the Family Court of Sintra because of lack of cooperation from the applicant in the procedure of protection framework in place. The prosecutor requested the opening of a procedure for the protection of children E., I., M., Y. and IR on the grounds that the applicant does not have adequate material conditions and that she neglected the children. From that moment, the family was followed by social services team with court (Equipa de crianças e jovens do Instituto da Segurança Social cupboard ao Tribunal) (the “ECJ”) of Sintra.

14. The applicant and her husband were heard, as well as older children and social workers who had accompanied the family. The family home visits also took place.

15. By order of 21 December 2007, the Family Court decided the implementation of a support measure for parents against children E., I., M., Y. and IR (medida de apoio junto dos pais). This measure was extended several times.

16. On 24 September 2008, during a visit to the family home, social services saw that the living conditions were still precarious.

17. A social worker was sent to the applicant to teach him to manage his home, to ensure hygiene and organization of home and care for her children.

18. On 25 June 2009 the court held a hearing pursuant to section 112 of the LPCJP. During this hearing, after taking into account the recommendations of social workers in charge of accompanying the family, the following clauses were added to the protection agreement:

“1. [Parents should] include the IR minor in a facility for children in the next school year.

2. The father will begin paid work and regularize the situation with social security.

3. The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation.

4. The spouses must prove that they actually care for their regularization in the country.

5. Parents must provide the documents required for the study of a potential financial support.

6. Parents must present someone in their family network and / or social may constitute effective support for the family; that person must then appear before the team and / or the court to be coresponsabilisée. ”

Subsequently, CPCJ asked expanding the protection procedure for children L., and A. MS

19. On 9 September 2009, social services carried out a visit to the home of the applicant.

20. On 10 September 2009, E., who was 13 years old and who was pregnant, was received in a temporary reception center to assist women. October 24, 2009, she gave birth to a child who died December 15, 2009.

21. As to S., who was not living with the family for some time, she returned to the family home in October 2009. Aged 16, she gave birth to a daughter December 31, 2009.

22. In December 2009, the ECJ in charge of the case gave a progress report to the court. It stated that the applicant and his spouse had not complied with the commitments made ​​under the protection agreement and include:

– IR that the child was still not enrolled in an institution for children;

– That the father had not rectified the situation with social security;

– That the mother had not proceeded with the operation of sterilization by tubal ligation she had taken any family planning because it had just given birth to another child, a year after giving birth to Twins ;

– That his last pregnancy had not been a medical monitoring;

– The parents were still unlawfully in the country;

– They did not submit their individual family or social network to help them care for children.

23. On 5 February 2010, the ECJ carried out a visit to the family home. She then gave a report to the court with the following observations:

– Vaccinations of Mr L. and MS were outdated;

– The father had reported receiving 366 euros (EUR) of monthly income;

– The applicant had no income;

– The family received 393 EUR per month family allowance;

– The irregular situation of certain members of the family was an obstacle to obtaining social allowances;

– The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

24. By order of 3 March 2010, the Family Court decided the expansion of the protection procedure for children L., and A. MS (about R., enlargement was pronounced by order of 5 January 2012).

25. In June 2010, a social worker was sent to the family to help in the care of the home. For six weeks, she went three to four times a week at the applicant’s home to teach her ​​to organize her home. It also helped him to move to another apartment.

26. On 23 August 2010, the ECJ introduced a report that:

– The father still had not rectified the situation with social services;

– The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation;

– Parents had still not presented with the documents necessary for the study of their financial situation;

– No person had shown available to provide support to the education of children;

– E. resumed his studies and was passed to the next level, but she continued to help her mother support the family remaining;

– I. succeeded his school year;

– Mr. Y. and did not attend school regularly;

– IR and A. were not attending the nursery and stayed home.

27. The court scheduled a hearing on 23 September 2010, but the parents are not comparurent.

28. A new hearing was scheduled for 26 October 2010, at which only S. appeared. During the hearing, it stated that the family situation has improved.

29. In December 2010, the ECJ gave a new report to the court, noting in particular:

– That E. had stopped going to school;

– That I still had not been entered in the register of civil status and does so enjoyed no social grant;

– That Y. and IR were often dirty and they ended up showering in kindergarten;

– There was no dialogue between the family and school;

– The twins were placed with nurses, they obviously lacked health care and they were not properly dressed compared to the seasons;

– Vaccinations of A. were outdated.

30. The ECJ gave a new report on 24 June 2011. This document stated that:

– The family had moved to another apartment whose conditions had been assessed, the applicant did not open the door of his home social workers;

– E. went to school, but continued to look after her brothers and sisters at home;

– I was still not registered in the register of civil status and does not have an identity document;

– The children’s father continued to be absent.

31. At an unspecified date, the prosecution presented its written submissions (alegações escritas) requiring the application of a measure of autonomy support (medida de apoio para a autonomia de vida) for a period of eighteen months against E., docking measure long-term institution (medida de acolhimento institucional duração longa) in respect of I., and Mr. Y ., and an investment of IR measurement, L., S., A. and R. at a person selected for adoption or in an institution for adoption (medida de confiança has selecionada pessoa para a adoção or has Instituição com vista futura adoção) on the basis of Article 35 § 1 d), f) and g) of the LPCJP.

32. On 26 January 2012 the court held a hearing at which neither the applicant nor her husband comparurent. During this, the ECJ stated that the situation of the family was still critical since the agreement was still not respected. She noted in particular:

– The twins were no longer in the manger-payment of hospitality expenses;

– That the eldest child continued to look after her brothers and sisters;

– That I was still not registered in the register of civil status.

33. On 16 May 2012 the court held a hearing (debate judicial). During the latter, the applicant asked the court not to remove him custody of his children on the grounds that she had great affection for them, it does not mistreated and that they were all his life.

3. The judgment of the Family Court of Lisbon North – East – Sintra of May 25, 2012

34. On 25 May 2012, the Lisbon North Family Court of – East – Sintra (new name of the Family Court of Sintra) gave judgment. He decided the application:

– A support measure of autonomy for an eighteen-month period with respect to E.;

– Of the applicant support measure for a period of one year for I., under Article 39 of the LPCJP;

– A child placement measurement M., Y., IR, L., S., A. and R. in an institution for adoption under section 38-A of LPCJP.

Stating that the latter measure would remain in force until the adoption was imposed pursuant to Article 62-A of LPCJP the court declared the forfeiture of parental rights of the applicant and her husband vis- a-vis Mr. Y., IR, L., S., A. and R., and the prohibition of contact with the latter, pursuant to Article 1978-A of the civil code.

To base its decision, the court took into account the reports of the CPCJ and the ECJ. The reasons for the decision read as follows:

“(…) It appears from the facts considered proven that the father is completely absent and the mother is unable to exercise his mother function as evidenced lack of sanitation, food, health care and supervision, the use of inappropriate clothing to the seasons, neglect to include some of the children in a residential institution for children, lack of school support for these and the lack of monitoring of adequate family planning.

In particular, it should be noted that the mother did not register her daughter I. in the register of civil status. This has the consequence that [the child] has no legal existence and can not benefit from social grants (…).

Regarding the lack of hygiene, it has been proven that children were dirty, [they were suffering from] a lack of personal hygiene and clothing, the kindergarten had allowed and Y. IR to shower in the facility, the comrades of I. refused to sit next to her because of its unpleasant odor and the children slept on mattresses soiled with urine (…).

Regarding the lack of hygiene of the apartment where the children lived, it appeared from various visits to the home he was dirty, the children were all sleeping in the same room, the remaining room was used to cram clothing and other products, and sometimes water and electricity were cut (…).

As for the lack of health care for children, we must first address the lack of medical monitoring of pregnancy, and lack of necessary medical consultations and vaccinations required (…).

Regarding the lack of supervision, it appears that the mother leaves bare son outgoing electrical sockets, windows are accessible to children, that pregnancies S. and E. occurred when they were 16 and 13 years, that I, who is 10, left alone with other children to care for them in the apartment, the door is locked (…).

The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

The applicant persisted in its refusal to sterilization by tubal ligation (…).

Finally, as to the lack of adequate family planning, it is important to note that, contrary to the commitment made ​​on 25 June 2009 under the protection agreement, the mother has not submitted sterilization by tubal ligation and that since the original agreement to date, four children were born (…).

Certainly the mother asked during the hearing that the children not be removed because she did not mistreated, she had tenderness for them and they were all his life, reflecting a certain affection for them.

However, the record contains no indication that would suggest she or the children’s father are able to provide a satisfactory response in terms of availability, commitment and collaboration to accomplish the relative function.

(…).

In addition, at least since the year 2007, the lives of children is more assured with the help of third parties (food bank, clothing donated by private individuals and institutions) than parents who do not seriously seek ways subsistence for themselves and their children.

Because of their irregular situation, minor parents do not even benefit from the social welfare benefit.

(…) ”

35. On 8 June 2012, the children’s placement decision was implemented on Y, R, L, MS, A and R, then respectively aged 6 years, 5 years, 3 years, 3 years, 2 years and seven months. The measure was not implemented with respect to Mr. because it was not at the family home at the time of child removal.

36. On 11 June 2012, the applicant and her husband appealed against the judgment before the Court of Appeal of Lisbon. Invoking the best interests of children, they asked that the execution of the judgment was suspended until the end of the procedure. They then alleged:

– That this separation might jeopardize the well-being of children;

– I. their daughter had meanwhile been registered at the civil status;

– They had not considered the submissions that had been made ​​by the prosecutor and that they had therefore been able to respond;

– They were not represented by a lawyer before the Family Court;

– They had been informed of the date of the court hearing after having contacted the Registry by telephone;

– There were no reasons other than their state of economic deprivation to justify the application of the protective measures they considered to be the most serious in terms of their children;

– The measure of placement in an institution for the adoption on children M., Y., IR, L., S., A. and R. was disproportionate to what was alleged against them and due to, according to them, the absence of abuse or violence against them and the existence of strong emotional ties between the applicant and children;

– That the assessments of the family situation were contradictory, the ground that a measure of support to the applicant had been applied in respect of two older while the most severe protection measure had been applied last seven;

– That the applicant was forced to commit to undergo sterilization operation by tubal ligation and the fact of not having taken this commitment had been held against him to justify the protective measures applied against children.

37. By an application dated 19 June 2012 the applicant requested the court information on the situation of children. She also informed the court that she had started a job and she had registered her daughter I. in the register of civil status of Sintra.

38. The action brought by the applicant and spouse was not welcomed by the Family Court, which held that it was brought outside the time limit. The applicant challenged the decision of the court before the Court of Appeal of Lisbon and in the Constitutional Court. On 10 May 2013, it upheld his appeal, stating that the appeal had been brought within the time limit.

39. On 1 July 2013, the applicant requested the court to suspend enforcement of the judgment in order to avoid breaking the family bond between her and the children on the one hand, and between them, on the other.

40. On 11 October 2013, she asked the Court of Appeal of Lisbon to apply provisional measures in order to have access to her children.

4. The judgments of the Court of Appeal of Lisbon

41. At an unspecified date, the Court of Appeal of Lisbon, sitting as a single judge, delivered a judgment confirming the judgment of the court in Lisbon Family Affairs Northeast – Sintra as well as the facts found by the trial.

As for sterilization, Lisbon Appeals Court held as follows in the part of the established facts:

“The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).

The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation.

We accept the facts.

(…) ”

As regards the plea of failure to notify the prosecution’s submissions, the Court of Appeal considered that they had been sent to the address that the applicant had indicated to the court as part of the procedure, they were returned to the court with “unclaimed” (não atendeu) and that the applicant had not proved that they had not been brought to its attention.

The plea of lack of abuse against children and the existence of emotional ties, the Court of Appeal held as follows:

“(…) The absence of abuse may be the same fruit of the lack of vis-à-vis child care, and a” food affection “(carinho alimentar) minimal or no can also be neglect. The argumentation seems therefore misleading.

That he reflected in the facts that were considered as? We fear so.

The facts considered proven amply demonstrate that children have not benefited from their parents’ minimum conditions of dwelling [and] physical and psychological security, a lot of waste covering the soil, water and electricity is cut for two months due to default. In addition, vaccinations [children] are outdated. The mother leaves the house and lets his older daughters take care of [their] younger brothers, the latter thus being prevented from going to school. The mother has never taken steps to register in the register of civil status daughter I. It is separated from the children’s father. This is sufficient to demonstrate the moral neglect. Added to this is the fact that [the mother] does not have and does not demonstrate to have the resources to give children a dignified life, which is enough to operate [the machine] court.

(…) Lack of parental involvement to ensure material comfort to children is in itself great violence that justifies the decision at first instance. Furthermore, it can not invoke the principle of primacy of the natural family.

(…) ”

42. On 26 December 2013, the applicant challenged that decision before the panel of three judges (conferência) the Court of Appeal of Lisbon. March 27, 2014, it confirmed word for word, by the process of copying and pasting, the judgment had been rendered.

43. On 21 April 2014 the applicant appealed on points of law to the Supreme Court. It alleged in particular:

– She had not been aware of the submissions made ​​by the prosecution;

– That the prosecution had requested the application of a placement order in institutions of her children and Mr. Y., that the court had meanwhile ordered the institutionalization of these for their adoption and that he had thus violated the adversarial principle;

– That the Court of Appeal had failed to rule over the developments, namely in particular, she said, she worked since 12 June 2012 and that it had conducted the registration of her daughter I. the register of civil status;

– She had been forced to commit to undergo sterilization by tubal ligation as part of the agreement with the social services, and that it violated his fundamental rights and breached Article 55 § 2 of the LPCJP;

– That the fact of not keeping its commitment had been considered by the court as an aggravating circumstance and that had motivated the placement of children for adoption;

– That the appeal court had not responded to its request for access to his children;

– The act about which it was not proportionate to what was criticized and had been executed force with police intervention, while his appeal was still pending.

The applicant argued further that the interpretation that was made ​​of Articles 35 § 1 g) and 55 § 2 of the LPCJP did not comply with the Constitution and that the non-mandatory representation by a lawyer statement, according it in section 103 of the LPCJP went against the right to a fair trial.

44. By order of 22 June 2014, Lisbon Appeals Court admitted the appeal, without giving it a suspensive effect.

45. Meanwhile, on 20 February 2014, the applicant had submitted an application to the Higher Judicial Council, in which it complained of a lack of response to all requests for access to her children and an inability to visit thereof.

5. The judgment of the Supreme Court of May 28, 2015

46. ​​On 28 May 2015 the Supreme Court delivered a judgment in which it dismissed the applicant’s appeal on the basis of the facts established at trial and confirmed by the Court of Appeal of Lisbon. As regards the plea of failure to notify the prosecutor’s submissions in the proceedings before the Family Court, it held:

– That the applicant had not proved not to have actually received the letter from the court containing the requisitions;

– It had presented February 28, 2012 a request to inspect the file of the proceedings that the court had granted the application and that, consequently, the applicant was well aware of requisitions by that route;

– The date of the hearing notification letter was sent to the applicant’s address was on file and had been returned marked “unclaimed”;

– That the record that a court clerk had communicated by telephone the date of the hearing to the applicant and that it had then requested its postponement, which was refused.

The Supreme Court held further that the Appeal Court had not mentioned in its judgment of the commitment by the applicant to undergo a sterilization operation, it was not based on the -ci and it was therefore not appropriate to refer to it and that the new elements mentioned by the applicant in the court of appeal had been taken into consideration by that court in its judgment. As for sterilization, the Supreme Court held as follows in the part of established facts:

“The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

(…) ”

47. As to the application of the institutionalization of children in placement measure for adoption, the Supreme Court observed that it could not rule on the compatibility of the measure with the law and not on whether or appropriateness thereof. It found that the facts had been established were considered sufficient and that therefore the legal provisions at issue, namely Article 1978 of the Civil Code and Article 34 of the LPCJP, were not violated.

As regards the complaint relating to a lack of the appeal court response to requests for access to his children made by the applicant, the Supreme Court held that:

“(…) The regime demanded proves visits and found inconsistent with the contested decision and in conflict with it, [that decision] providing institutional care for adoption, with disqualification parental authority, [that disqualification is] also in line with the provisions of Article 1978-A of the civil code (…) ”

She concluded:

“Therefore, in view of the established material reality, there is a particularly dangerous situation when the biological family is unstructured, that the father is absent from the lives of children and the mother demonstrated a great emotional instability, unstable employment and obvious negligence in relation to care due to minor children on hygiene, health, food, housing and education. Accordingly, the decision of the courts in the light of Article 1978 § 1 of the Civil Code and Article 35 § 1 g) LPCJP, to opt for the institutionalization of measures to adopt and , consequently, for the loss of parental authority over minor children, under Article 1978-A of the civil code, is not illegal. ”

48. On 16 June 2015 the applicant lodged a complaint before the panel of three judges of the Supreme Court. She requested a review ( reforma ) of the judgment, citing several grounds for revocation and accusing the Supreme Court for not having ruled on the question of the lack of notification of the prosecutor’s submissions and the date of hearing before the family court.

49. In a judgment of 9 July 2015 the panel of three judges of the Supreme Court dismissed the applicant’s appeal on the grounds that the notification of the date of the hearing had been made to the applicant’s address that appeared in the record, and that the applicant had, in fact, access to submissions and evidence which appeared to support them since it had consulted the case file.

50. The applicant challenged the judgment in the context of an appeal for annulment by which it contested consulting the case file. The Supreme Court rejected the claims by its judgment of 17 September 2015.

6. The proceedings before the Constitutional Court

51. Subsequently, on 5 October 2015 the applicant lodged an appeal with the Constitutional Court, arguing the unconstitutionality of several provisions of the LPCJP and Article 1978 of the Civil Code. She complained in particular:

– The interpretation by the courts of Articles 35 § 1 g) and 38-A of LPCJP, who would have considered that the care order for the adoption could be applied even if the parent had not read the prosecution’s submissions requesting such action and that the notification could be presumed;

– The interpretation by the courts of Articles 35 § 1 d) and g), 45 and 55 § 2 of the LPCJP that would have felt that the non-compliance with the commitment by the applicant to undergo sterilization could be a aggravating circumstance and motivate the application of institutionalization measure for adoption;

– The non-mandatory representation by a lawyer during the proceedings before the courts of first instance, which was laid down by Article 103 of the LPCJP.

52. According to the latest information received, which date back to the 1 st December 2015, the proceedings before the Constitutional Court is still pending.

B. On the intervention of the Court under Article 39 of the Rules

53. Meanwhile, by a fax of 19 November 2014, the applicant had, on the basis of Article 39 of the Regulation, referred to the Court a request to obtain visiting rights to her children who had been placed in care for their adoption.

54. On 17 February 2015, the Court invited the Portuguese Government, under that provision, to adopt interim measures to allow access by the applicant to his children and the restoration of contacts between them for the duration of the proceedings before it.

55. On 5 March 2015, the Family Court had authorized the applicant to resume contact with his children.

56. Since 15 March 2015, the applicant makes weekly visits to his children in the three institutions located in Sintra, Cascais and Alverca, where they have been placed.

II. THE MATERIALS AND THE INTERNATIONAL LAW RELEVANT

A. The concluding observations of the UN Child Rights Committee concerning the third and fourth periodic reports of Portugal

57. Pursuant to Article 44 of the Convention on the Rights of the Child, the UN Child Rights Committee considered the third and fourth periodic reports of Portugal, submitted in one document (CRC / C / PRT / 3-4) at its 1860 th and 1861 th meetings (see CRC / C / SR.1860 and 1861), held on 22 January 2014, and adopted at its 1875 th meeting (CRC / C / SR .1875), held on 31 January 2014, its concluding observations on those reports, the relevant parties in this case are as follows:

“39. While welcoming the existence of a wide range of social assistance programs, including that of emergency social assistance program, the Committee is concerned that many families, especially those found in poverty, do not receive appropriate assistance to fulfill their responsibilities as parents raising children, especially in terms of financial, educational early childhood accessible and youth protection children. The Committee is particularly concerned about the situation of children in families affected by the current economic crisis, who need social measures of positive discrimination, especially single-parent families, families with disabled children and families living in persistent poverty.

40. The Committee recommends that the State party strengthen its efforts to provide appropriate assistance to parents and legal guardians to enable them to fulfill their responsibilities of parents raising children, especially when they are in situations of poverty. It also recommends that the State party ensure that no group of children lives below the poverty line. The Committee further recommends that the State party strengthen the system of family benefits and family allowances as well as other services such as counseling and family counseling, as well as child care and early childhood education, to provide support to the families of two or more children, families with disabled children and families living in persistent poverty, according to the guidance document of the European Commission concerning custody and childrearing.

41. The Committee welcomes the adoption of the law on the protection of children and youth at risk, the steps taken to reunite families and efforts to promote the reduction of institutionalization, in particular by increasing the number of children living in group homes. However, the Committee expresses concern:

a) small number of reception and placement of children in families of families, and facing the widespread use yet to institutionalization, especially the younger children;

(…)

42. The Committee recommends that the State party to implement the following measures – after taking into account the Guidelines for the Alternative Care of Children annexed to resolution 64/142 of 18 December 2009 of the Assembly UN General:

a) Increase support to biological families to avoid investments in alternative structures; strengthen the provisions relating to the protection within the family, such as the extended family, placement in family systems and investment institutions; take all necessary measures to ensure that alternative care for young children, especially children under 3 years, is part of a family setting;

(…)

57. The Committee welcomes the decision of the State party to increase allowances and family benefits for vulnerable households with children, that is to say, single-parent families, families with two children or more, families with disabled children and families living in persistent poverty; it welcomes the expansion of the meal program in schools and the implementation of emergency social program in 2011 in order to minimize the effects of the financial crisis on vulnerable households. The Committee is concerned about the high level of poverty among children and the implementation of austerity measures that have adverse effects on families, which greatly increases the risk of exposing children to poverty and affect their enjoyment of many rights under the Convention, including the rights to health, education and social protection.

58. The Committee urges the State party to intensify efforts to address both the immediate and the long term, the high level of child poverty, including through public policy and a national plan the fight against child poverty. These policies and this plan should consist of the establishment of a coherent framework consisting of priority measures to fight against the exclusion of children with specific and measurable objectives with clear indicators and deadlines, and enjoying a sufficient economic and financial support.

(…) ”

B. Domestic law

1. The Civil Code

58. The relevant provisions in the case of the Civil Code in force at the relevant time, read as follows:

Article 1978
Placement for adoption

“1. For the purposes of an adoption, the court may place the minor in a couple, in one person or in an institution where the affective bonds particular to filiation do not exist or are seriously compromised for the following reasons:

(…)

d) when the parents, by act or omission, or because of an obvious disability due to mental illness put at grave risk the safety, health, training, education or development of the minor;

(…).

2. As part of the review of the situations listed in the preceding paragraph, the court must consider first the rights and interests of the minor.

(…)

5. The judicial placement of a minor can be requested by the public prosecutor, the social security center in the minor area of ​​residence, the person to whom the child was entrusted administratively, the director of the public institution or direction the private host institution.

(…) ”

Article 1978-A
effect (…) the extent (…) investment in a person selected for adoption or in an institution for the adoption

“Once (…) that the measure promotion and protection with investment in a person selected for adoption or in an institution for the adoption has been ordered, the parents are deprived of their parental authority. ”

2. The law on the protection of children and young people at risk

59. At the material time, the LPCJP, governed by Law 147/99 of 1 st September 1999 in the version following the Law 31/2003 of 22 August 2003, established the regime and the promotion procedure for the rights and protection children and youth at risk ( processo de Promoção of direitos e proteção das crianças e jovens em perigo ).

60. According to this law, he meant by “child” a person under the age of 18 and “young” a person aged under 21 who requested the continuation of the intervention that was implemented before age 18 (Article 5 a)). Measures to promote rights and child protection were adopted by child protection committees or youth at risk or the courts (Article 5 e)). They aimed to remove children and young people to the danger they faced, to provide conditions for them to access their security, health care, education or training, promoting their development and allow them to physical and psychological rehabilitation in relation to any form of abuse or exploitation (Article 34).

61. The relevant parties in this case that Act read as follows:

Article 9
Agreement

“1. The intervention of commissions to protect children and young people ( comissões of proteção das crianças e jovens ) require the explicit agreement of the parents, legal guardian or person having custody of fact, the case.

(…) ”

Article 35
Measures

“1. The promotion and protection measures are:

a) support for parents;

b) support to another family member;

c) placement in a person with a good reputation ( Idónea );

d) support for autonomy ( apoio para a vida autonomia );

e) foster care;

f) institutional care;

g) placement with a person selected for adoption or in an institution for adoption.

2. The promotion and protection measures are implemented, depending on their nature, open ( meio natural de vida ) or investment plan and may be decided provisionally.

(…) ”

Article 38
Application jurisdiction measures to promote
and protect

“The application of measures to promote the rights and protection of the exclusive jurisdiction of protection commissions and courts; (…) ”

Article 38-A
Placement in a person selected for adoption or in an institution for the adoption

“The measure of placement in a person selected for adoption or in an institution for the adoption, applicable when one of the situations specified in Article 1978 of the Civil Code is verified, consists of:

a) placement of the child or young person under the care of a candidate selected to the adoption by the competent social security body; or

b) placing the child or young person under the care of an institution for adoption. ”

Article 39
Support for parents

“The parent support measure is to provide for the child or young psychoeducational and social support and, if necessary, financial assistance. ”

Article 41
parenting

“1. When the measure provided for in Article 39 is applied (…), parents (…) can benefit from a training program aimed at improving parenting duties.

(…) ”

Article 45
Support for autonomy

“1. The autonomy support measure is to bring directly to the young age of 15 years financial and psycho-social support and, in particular through training programs, to offer him terms that will enable to live alone and to gradually acquire a life of autonomy.

(…). ”

Article 49
institution Home Concept

“1. The welcome in institutions is a measure of placing the child or youth in a structure with facilities or a permanent host, and a team of workers that can guarantee [ the child or young] care consistent with their needs and bring [to it] conditions that promote their education, well-being and full development.

(…) ”

Article 55
Promotion and Protection Agreement

“1. The promotion and protection agreement must include:

a) identifying the member protection commission or the [social worker] responsible for managing the project;

b) the period for which it is established and where it needs to be revised;

c) the declarations of consent or no objection necessary.

2. Shall not be established clauses impose undue obligations or imposing limitations to the operation of family life beyond the necessary steps to effectively rule out the danger factors. ”

Article 56
Promotion and Protection Agreement on measures in open

“1. The following shall in particular be included in the promotion and protection agreement establishing the measures to be implemented in an open environment:

a) feeding, hygiene and health care and comfort to provide the child or young by parents (…);

b) identification of the person responsible for the child or youth for the period during which it can not or should not be in the company or under the supervision of parents or the person to whom it was given;

c) school planning, vocational training, work and free time occupation;

d) the planning of health care, including medical consultations and child guidance, and the commitment to comply with the established guidelines and guidance;

e) financial assistance to be awarded, its terms and duration, as well as the entity responsible for its issue and the associated conditions.

(…) ”

Article 62-A
placement measurement in a person selected for adoption
or in an institution for the adoption

“1. The measure of placement in a person selected for adoption or in an institution for the adoption lasts until the adoption is granted and is not subject to review.

2. (…) the natural family does not have the access.

(…) ”

Article 85
Hearing of the holders of parental authority

“The parents, the legal representative and persons with de facto custody of the child or young person is compulsorily heard on the situation which led to the introduction and implementation, revision or termination, of the promotion and protection. ”

Article 100
Procedure

“The judicial process of promoting the rights and protection of children and young people in danger, now designated as judicial proceedings promotion and protection, is the voluntary jurisdiction. ”

Article 103
Lawyer

“1. The parents, legal representative or the person having de facto custody of the child or young person may at any stage of the proceedings, to counsel or request the appointment of a lawyer for representation or that of the child or youth.

2. A lawyer must be appointed to represent the child or young when the interests [of it] and those of his parents are conflicting and, also, when the child or young person who seeks the sufficient maturity with the court.

(…)

4. At the hearing ( debate judicial ) recourse to a lawyer or the appointment of a lawyer is required to assist the child or youth. ”

With the entry into force, scheduled for 8 December 2015, of the law 142/2015 of 8 September 2015, paragraph 4 of Article 103 shall read as follows:

“4. At the hearing, recourse to a lawyer or the appointment of counsel to assist parents is mandatory in cases concerning the extent provided in paragraph g) of paragraph 1 of Article 35, and is mandatory in all cases to assist the child or youth. ”

Article 104
Contradictory

“1. The child or youth, his parents, his legal representative or any person having de facto custody have the right to request the pleadings ( diligencias ) and produce evidence.

2. Written comments may be submitted during the hearing and the adversarial guaranteed.

3. The contradiction regarding the facts and the applicable measurement is always guaranteed in all phases of the proceedings, including during the conciliation aims to reach an agreement, and as part of the hearing where as provided in paragraph g) of paragraph 1 of Article 35 is applicable. ”

Article 106
Phases of the procedure

“1. The legal process of promotion and protection includes the instruction phase, hearing, decision and execution of the measure.

(…) ”

Article 110
instruction Closure

“After hearing the public prosecutor, the court declares the instruction and close:

(…)

c) it clearly appears unlikely to reach a conciliation, he ordered the continuation of the procedure for a hearing and proceed to notifications pursuant to Article 114 § 1. ”

Article 112
negotiated Decision ( Decisão negociada )

“The judge summons to the hearing ( conferência ), for the purpose of obtaining a promotion and protection agreement, the Public Prosecutor, the parents, the legal representative or the person who has de facto custody [of the minor ], the child or young person aged over 12 years, and persons and representatives of entities that it believes the presence and consent to the relevant agreement. ”

Article 114
Hearing ( debate judicial)

“1. If it has not been possible to achieve promotion and protection agreement (…), the judge makes a notification to the Public Prosecutor, the parents, the legal representative or the person who guard [the minor], the child or young person aged over 12 years so that interested parties present in writing, within ten days their comments if they wish and (…) their means evidence.

2. The public prosecutor shall submit written comments and evidence if it considers the measure to be applied is that set out in paragraph g) of paragraph 1 of Article 35.

3. After receiving comments and evidence, the judge will set a hearing date and ordered that notification is made to appear to people.

4. With the notification of the hearing date is made available to parents, legal guardian or person having custody of [the minor] the prosecution submissions and knowledge of it and the memories the evidence requested. ”

3. The Code of Civil Procedure

62. Article 1409 of the Civil Procedure Code, in force at the time, had the relevant parts in this case:

“(…)

4. In voluntary jurisdiction procedures, representation by a lawyer is not mandatory in the appeal phase. ”

IN LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

63. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of an infringement of her right to respect for family life due to the application of a placement order for the adoption to respect of his seven younger children and the ban for it to have access to them from the court judgment to the Lisbon family Affairs Northeast – Sintra on 25 May 2012. on that point, it states that introduced, unsuccessfully, various applications and appeals. It also complains that the courts based their decisions on the fact that it had not met its commitments to adequate family planning.

64. The Government rejected the applicant’s argument.

65. Mistress of the legal characterization of the facts of the case, the Court considers it appropriate to consider the complaints raised by the applicant in terms of the single article 8 of the Convention, which requires that the decision-making process leading to measures of interference is fair and respects, as it should be, the interests protected by that provision ( Kutzner v. Germany , n o 46544/99 , § 56, ECHR 2002 – I, . Kříž v Czech Republic . (Dec.) n o 26634/03 , 29 November 2005, and Pontes v. Portugal , n o 19554/09 , § 67, 10 April 2012).

Article 8 of the Convention provides in relevant part in this case:

“1. Everyone has the right to respect for his life (…) family (…).

2. There can be no interference by a public authority with the exercise of this right except such as this interference is provided for by law and is a measure in a democratic society, is necessary (.. .) for the protection of health or morals, or the protection of the rights and freedoms of others. ”

A. Admissibility

1. Arguments of the parties

66. The Government raised a plea of ​​premature nature of the application on the ground that the applicant submitted after the judgment of the Supreme Court of 28 May 2015, an appeal to the Constitutional Court which is still pending. He believes that if the Constitutional Court granted the applicant’s request on the various normative unconstitutionality allegations raised by it in its appeal in memory, the case will be sent back to trial and that therefore the Supreme Court is not yet final.

67. The applicant argues that the appeal of unconstitutionality before the Constitutional Court can not be seen as an effective remedy to exercise under Article 35 § 1 of the Convention. She claims to have submitted his appeal to the Constitutional Court to prevent the investment decision of their children for adoption becomes final. In addition, indicating that there is the Constitutional Court no recourse against violations of fundamental rights equivalent appeal by amparo , it argues that this court can not rule on the character consistent with the Constitution of a standard or its interpretation by a lower court and can not therefore rule on the merits of a case has already been decided by the Supreme Court. It adds that even if the Constitutional Court gives a favorable response to its appeal, this court is not bound to order a referral of the case for a new decision on the merits. Finally, the applicant states that the withdrawal of his children was implemented June 8, 2012, that the violation denounced by it is already effective and that, therefore, the request is not premature.

2. Findings of the Court

68. The Court recalls that Article 35 § 1 of the Convention, it may not matter after the exhaustion of domestic remedies. Every applicant must have given the domestic courts the opportunity that this provision was intended to be afforded to Contracting States in principle: prevent or redress the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Moreira Barbosa v. Portugal (dec.), n o 65681/01 , ECHR 2004-V, and Cardot v. France , 19 March 1991, § 36, series A n o 200). This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that the domestic system provides an effective remedy in respect of the alleged violation (see, for example, Selmouni v. France [GC], n o 25803/94 , § 74, ECHR 1999-V).

69. The Court further recalls that Article 35 of the Convention provides that only the exhaustion of remedies both related to the breaches alleged available and sufficient. These remedies should exist in a sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many others, Vernillo v. France , 20 February 1991 , § 27, series A n o 198, Dalia v. France , 19 February 1998, § 38, Reports of judgments and decisions 1998 – I, and . Vučković and others v Serbia (preliminary objection) [GC], no bones 17153 / 11 and 29, § 71, 25 my rs 2014).

70. The Court must apply the rule of exhaustion of domestic remedies, taking due account of the context: the safeguard of human rights that the Contracting Parties have agreed to set. It has recognized that Article 35 § 1 of the Convention must be applied with flexibility and without excessive formalism. It has further recognized that the rule does not accommodate an automatic application and is not an absolute one; to monitor compliance, it is essential to have regard to the circumstances of the case. This means that the Court must take realistic account not only of the remedies provided in theory in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the applicant’s personal situation ( Akdivar and others v. Turkey, 16 September 1996, § 69, Reports 1996 – IV).

71. The answer to the question of whether the individual complaint to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the peculiarities of the legal system of the respondent State and the extent of skills of its constitutional jurisdiction. Thus, in a state where these skills are limited to a review of the constitutionality and the level of compatibility of legal norms, an appeal to the Constitutional Court is to exercise that where the applicant challenges a law or regulation as in itself contrary to the Convention ( Grišankova and Grišankovs v. Latvia (dec), n. o 36117/02 , ECHR 2003 – II). However, this remedy is not effective when the applicant complains that an error in the interpretation or application of a law or regulation which in itself is not unconstitutional ( Szott Medyńska-c . Poland (dec.), n o 47414/99 , 9 October 2003, and Smirnov v. Russia (dec.), n o 14085/04 , ECHR, 6 July 2006).

72. Turning to the present case, the Court first notes that it is undisputed that the constitutional complaint in Portugal shall relate to one “normative” provision and not a judicial decision ( Colaço Mestre and SIC – Sociedade Independente de Comunicação SA c. Portugal (dec.), No bone 11182/03 and 11319/03 , 18 October 2005).

73. It then observes that the applicant raised before the Constitutional Court several pleas of unconstitutionality of the interpretation given by the courts of certain provisions of LPCJP (paragraph 51 above) to denounce the disproportionate nature in his eyes the institutionalization of best of its children for adoption. Since this part of the constitutional complaint concerns the judicial decision itself and not on a normative unconstitutionality, it appears doomed.

74. As regards the plea alleging an illegal character in the Constitution of the absence of legal representation obligation, before the courts of first instance, parents of a child subject to a protection proceedings, the Court considers that it can not speculate on the admissibility and the potential outcome of this part of the appeal. Moreover, even assuming that the applicant obtains a favorable decision and that the case be sent back to trial, he must still submit his complaints of potential harm resulting from the contested measure, within the framework a civil action against the State for the purpose of obtaining compensation. Moreover, the Court considers that it can not require the applicant to wait longer that the Constitutional Court’s decision, since the protective measure was executed on 8 June 2012, there is more three years already (see, mutatis mutandis , Guillemin v. France , 21 February 1997, § 50, Series 1997 – I).

75. In view of the foregoing, the Court considers it appropriate to reject the Government’s objection.

3. Conclusion

76. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and it also faces any other ground of inadmissibility, the Court declares it admissible.

B. Merits

1. Arguments of the parties

a) The applicant

77. The applicant alleges that the measure of placement for adoption, applied in respect of seven of his children and performed with regard to six of them, constituted a disproportionate interference with his right to respect for family life. Contesting the facts considered proven by the domestic courts, she argues that her children were exposed to any physical or psychological violence and that their placement was based solely on his social precarious situations. She complains about the application of different measures vis-à-vis her children and says not understand why the support measure for parents has been applied in respect of her daughter I. whereas the road to adoption , harder in his eyes, was chosen for its youngest children.

78. Complaining that less drastic measures with regard to its youngest children were not considered, the applicant claims not to have received adequate social assistance from social services before the institutionalization of its children for adoption. It refers, as evidence, to the various reports on which the domestic courts have relied and believes they show that social services were deaf to her distress and she continued to struggle alone to provide for his family. She denies having ceased to work with social services, stating that it has received no visits from them the year before the application of the investment measure.

79. The applicant also complained of being pushed to agree to include in the agreement with the social services a clause under which it undertook to undergo sterilization operation while it believes such a move went against his culture and his Muslim religion. She says she accepted the inclusion of this clause because of her emotional state – in her brittle – at the material and to stop the relentless social services to which it was confronted. She is convinced that the withdrawal of his children was decided to punish her for not having been sterilized and have even given birth to four children. It states that it appears from the judgment of the Family Court in which it had stressed that it was ultimately not sterilized despite its commitment to undergo such an operation.

80. Next, the applicant criticizes the forfeiture of parental authority and the prohibition of contact with and between his children in three different foster homes under the judgment of the Family Court. Indicating that the decision was not yet final and that the courts had recognized the absence of physical violence and the existence of emotional ties with her children, she argues that these restrictions have made it for additional punishment and that the ‘were removed from her children. In the alternative, she complained of not having received any response from the authorities about the various requests made by it to have access to her children. She indicated that her youngest was six months old when he was removed and the immediate implementation of the measure and the absolute prohibition of contact were thus prevented the establishment of any link with it. She complains of not being able to see her children since the indication of provisional measures by the Court, ordered under Rule 39. It adds, in the alternative, as reports show that children responded enthusiastically to restoring contact with her.

81. At the procedural level, the applicant complains of not being able to participate effectively in the proceedings.

First, it states that it was represented by counsel until May 25, 2012, the judgment of the Family Court, and it was not before, and that in despite it believes the complexity of the procedure and the severity of its issues. It believes that it has therefore not been able to defend its interests, since it would have been possible to present its case, and the court did not allow effective participation in since the procedure would not have told her what was happening. On this point, she alleges, for example she could not attend the hearing various witnesses during the judicial debate on 16 May 2012.

Then she complained that the prosecution’s charges were not brought to its notice, which would not have allowed him to understand the stakes in the proceedings and, in particular, the investment demand from children for adoption envisaged in the court order of January 26, 2012. in addition, it alleges that the family court to have applied the placement order against her seven younger children, namely M. Y, R, L., S., A. and R. whereas this measure had, she said, was requested by the prosecution vis-à-vis the last five.

Finally, the appellant criticizes the Family Court having relied solely on the reports of social services and to have ordered no expertise enabling it to assess its ability to exercise their parenting and assess the maturity and affective and emotional balance of his children. It further alleges that the evidence it submitted in support of its appeal before the court of appeal were not considered, that court, as the Supreme Court, being limited his statements to confirm the judgment of the family court without a critical examination of the facts. She claims to have suffered the procedure without ever having been able to bring any evidence in his defense.

82. Furthermore, the applicant requests the Court to order the continued visits to his children and between them.

b) The Government

83. The Government recognizes that the placement of children of the applicant institution for adoption was an interference with the right of the latter to respect for family life. It is, however, that the interference was justified having regard to the best interests of children on the grounds that they were in danger because of negligence on the applicant and her husband, and that the situation would have known no improvement despite the application of a measure of support to parents for several years.

84. As regards the necessity of the measure, the Government maintained that the father was absent from the home and that the applicant had shown great neglect of her children. He said that the family had followed since 2005 by social services and a more sustained since the agreement with the applicant in 2007, which led to the application of a support measure against relatives children. He added that this has brought social services to perform close monitoring of the family including through meetings and visits at home and at school. It states that, from 2010, the applicant ceased to cooperate with social services and has made it impossible to apply the measure of current assistance. He says the child institutionalization was then considered as a solution for the younger children and that this measure was applied only after other measures failed. He says, to base its judgment, the Family Court took into account the competing interests at stake and that it relied on the testimony of Social Workers, the applicant and spouse and the eldest daughter of torque, and the different social relations. It specifies that these reports had helped raise the following: a lack of health and safety at the family home; lack of medical care for children; a truancy of children; food and clothing deficiencies; administrative negligence, for example the lack of registration of one of the daughters of the applicant in the register of civil status and the irregular situation of the applicant in the country.

The Government also states that the applicant had not designated a person of the family circle may constitute a support for the family.

85. As regards the sterilization operation, the Government maintained that the applicant had deliberately engaged in 2009 to do such an operation within the framework of the promotion and protection agreement. He added that the aim was only to allow monitoring of a family planning program by the applicant and not to force it to a specific contraceptive method. In addition, it states that the courts had not taken this into account in their decision and that it therefore had no influence in the procedure: in this regard, he said that the Family Court noted in its judgment the lack of monitoring of family planning and not a specific method of contraception.

86. The Government concluded that the measure was appropriate, proportionate, and therefore necessary in a democratic society, and therefore did not violate Article 8 § 2 of the Convention. He believes it also notes the national margin of appreciation, as the authorities are better placed to determine the solution to be applied in relation to a concrete situation and that, consequently, the Court can not revisit the facts were considered as internally.

87. As regards the impossibility for the applicant to have access to her children, the Government explains that this follows from the very measure of placement for adoption, pursuant to Article 1978-A the civil code and Article 62-A of LPCJ.

2. Findings of the Court

a) General principles

88. The Court recalls that, for a parent and child of each constitutes a fundamental element of family life ( Kutzner , cited above, § 58): domestic measures hindering such constitute interference with the right protected by the Article 8 of the Convention ( K. and T. v. Finland [GC], n o 25702/94 , § 151, ECHR 2001-VII). Such interference breaches the aforementioned Article 8 unless it is “prescribed by law”, pursues one or more legitimate aims under the second paragraph of that provision and was “necessary in a democratic society” for the ( Gnahoré c. France , n o 40031/98 , § 50, ECHR 2000 IX, and Pontes , cited above, § 74). The notion of “necessity” implies that the interference on a pressing social need and, in particular, proportionate to the legitimate aim ( Couillard Maugery v. France , n o 64796/01 , § 237, 1 st July 2004). In assessing the “necessity” of the measure “in a democratic society” and therefore should be analyzed in the light of the whole case, the reasons adduced in support of it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.

89. The fact that a child could be placed in a more beneficial environment for his education can not in itself justify the strength of removal from the care of their biological parents; such an interference with the right of parents, under Article 8 of the Convention to enjoy a family life with their child still has to be “necessary” due to other circumstances ( K. and T. , supra , § 173, and Kutzner , cited above, § 69). Moreover, Article 8 of the Convention imposes on the state of positive obligations inherent in effective “respect” for family life. Thus, where the existence of a family relationship is established, the State must in principle act to enable that tie to be developed and take measures to meet the parent and the child concerned ( Kutzner , cited above, § 61).

90. In consideration of the necessity of the interference, the Court will take into account that the design that has been the timeliness of intervention by public authorities in the care of a child varies from State to another depending on factors such as traditions relating to the role of the family and state intervention in family affairs, as well as the resources that can be devoted to measures public in this particular field. Still, the best interests of the child in each case takes decisive. We must also not lose sight of that national authorities benefit of direct contact with all concerned ( Olsson v. Sweden (n o 2) , 27 November 1992, § 90, Series A n o 250), often at the when investment measures are envisaged or immediately after their implementation. It follows from these considerations that the Court is not its task to replace the domestic authorities in the exercise of their regulatory responsibilities in matters of child care by the public authority and the rights of parents whose children were well placed, but to control the angle of the Convention the decisions they delivered in the exercise of their discretion ( Hokkanen v. Finland , 23 September 1994, § 55, series A n o 299 – A, Johansen v. Norway , 7 August 1996, § 64, Reports 1996 – III, and K. and T. , cited above, § 154).

91. The Court also recalls that although the border between the positive obligations and negative obligations of the State under Article 8 of the Convention does not lend itself to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, regard must be had to the fair balance between the competing interests – those of the child, those of the parents and those of public order ( . Maumousseau and Washington v France , n o 39388 / 05 , § 62, ECHR 2007-XIII) – taking into account, however, that the child’s best interests must be the paramount consideration (see, to that effect, Gnahoré , cited above, § 59) which, according to its nature and seriousness, override those of the parents ( Sahin v. Germany [GC], n o 30943/96 , § 66, ECHR 2003 – VIII). In addition, a family breakup is a very serious interference; a measure leading to this situation should therefore be based on considerations inspired by the interests of the child and of a weight and a sufficient strength ( Scozzari and Giunta v. Italy [GC], no bones 39221/98 and 41963 / 98 , § 148, ECHR 2000-VIII). The remoteness of the family context child is an extreme measure to which one should be used as a last resort. For a measure of this type is justified, it must meet in order to protect the child faces an immediate danger ( Neulinger and Shuruk v. Switzerland [GC], n o 41615/07 , § 136, ECHR 2010).

92. It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with these positive obligations under Article 8 of the Convention and the Court whether, in application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, taking particular account of the best interests of the child (see, mutatis mutandis , Neulinger and Shuruk , § 141, ECHR 2010, and KAB v. Spain , n o 59819/08 , § 115, April 10, 2012,).

93. The Court reiterates that, if the authorities have considerable latitude to assess in particular the need to take charge of a child, it must nevertheless be satisfied that in the case in question, there were circumstances warranting the removal of the child. It is incumbent on the respondent State to establish that the authorities before putting such measures into effect, carefully assessed the impact that would have on the parents and the child measuring envisaged adoption and other solutions that child care ( K. and T. , supra, § 166, and Kutzner , cited above, § 67). The Court also exerts tighter control on additional restrictions, such as those made ​​by the authorities of the parents visiting rights, and safeguards to ensure the effective protection of the rights of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child ( Gnahoré , § 54, and Sahin , cited above, § 65). On one hand, it is certain that guarantee children a development in a healthy environment responsibility of the child’s interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to health and development of children ( Sahin , cited above, § 66). On the other hand, it is clear that it is as much in the child’s interest that the relationship between he and his family are kept, except in cases where it was particularly indignant: break link back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , § 59, and Pontes , cited above, § 85).

94. If Article 8 of the Convention contains no explicit procedural requirements, the decision process related to measures of interference must be fair and proper to respect the interests protected by that provision. It should therefore be determined, depending on the circumstances of each case including the seriousness of the action, if the parents have been involved in the decision process, as a whole, a fairly important role to give the required protection in their interests. If not, there is a failure to respect their family life and the interference resulting from the decision can not “necessary” under Article 8 ( W. v. United Kingdom , 8 July 1987 § 64, series A n o 121, and Assunção Chaves v. Portugal , n o 61226/08 , §§ 82-84, 31 January 2012).

b) Application of these principles in the present case

95. In the present case, the Court notes that the parties do not dispute that the contested measure investment – orders against seven of his children, M., Y., IR, L., MS, and A. R., and executed from the last six – the loss of parental authority and the prohibition of any visit, decided by the judgment of the family court of Lisbon Northeast – Sintra on 25 May 2012 constituted “interferences” in the exercise of the right of the applicant to respect for his family life. The Court sees no reason to conclude otherwise.

96. The Court further observes that the parties agree that the interference in question had a legal basis. It also notes that the above measures at issue were based on Article 35 § 1 g) of the LPCJP and Article 1978-A of the Civil Code, and were therefore “prescribed by law”.

97. It appears from the reasons given by the domestic courts that the decisions to which the applicant had the objective of safeguarding the interests of children. The interference in question therefore pursued a legitimate aim under Article 8 § 2 of the Convention: “the protection of rights and freedoms of others.” The question is therefore whether the measures were “necessary in a democratic society” to achieve the legitimate aim in the particular circumstances of the case; more specifically, it is whether the application made in this case the legislation struck a fair balance between the best interests of the child and other competing interests.

i. preliminary observations

98. As a preliminary point, the Court notes the concluding observations and recommendations presented by the Committee of the UN Rights of the Child adopted 31 January 2014 concerning the situation of families living in persistent poverty in Portugal (see comments and recommendations n os 39-42 and 57-58 times in paragraph 57 above).

99. Next, in the present case, it notes the following.

First, the family of the applicant was the subject of a first report of the CPCJ in 2005, since the applicant was unemployed and his spouse, the children’s father, was often away from home because his polygamy.

Subsequently, a rights promotion agreement and child protection between the applicant, spouse and CPCJ was established January 4, 2007 pursuant to section 55 of the LPCJP concerning E. (then aged 11 years), I. (then aged 5), M. (then aged 2), Y. (then aged 1 year) and IR (then aged three months). Under the agreement, the applicant was engaged, among others, to seek employment, to improve the living conditions in its housing and to ensure to allow his children to go to school and, where appropriate, from attending kindergartens or nurseries. Also according to the agreement, CPCJ was committed, for its part, to monitor and support the implementation of the Agreement through recommendations, suggestions and proposals (see paragraph 9 above).

The promotion procedure for the rights and protection of children at risk was officially opened on 26 September 2007, at the request of the CPCJ who was brought to the attention of the prosecutor at the court in Sintra family affairs lack of cooperation from applicant as part of the agreement, including the lack of adequate material conditions and neglect. A measure of support to parents against children was then applied on 21 December 2007 in accordance with Article 39 of the LPCJP. It resulted from the support provided to the applicant by a social worker of the ECJ in order to teach it to organize their home and care for her children (paragraphs 15-17 above – above ).

Following a hearing held on June 25 2009 in the presence of the applicant and her husband, additional clauses were added to the protection agreement by which, inter alia, the applicant undertook to rectify the situation in Portugal , to submit a dossier in order to obtain a financial allocation to designate a trusted person in the family or social circle and to undergo a sterilization operation by tubal ligation (see paragraph 18 above).

Finally, between 10 September 2009 and 24 June 2011, the applicant was the subject of several controls ECJ.

100. The Court further notes that the ECJ has sent five reports to the court, including opportunities early pregnancies of two older girls, always precarious and unhealthy housing conditions, a one-time truancy of some children, but also good grades with regard to E. I. and the lack of vaccinations update in respect of M., L., and A. MS, lack of hygiene observed in children as well as the non-compliance the commitment by the applicant to be sterilized.

101. The Court also observes that, in financial terms, the ECJ noted that the applicant was still out of work and she received 393 EUR family allowance, the children’s father had declared a monthly income of 366 EUR and that parents still had not submitted an application to obtain financial assistance.

102. It further notes that in its judgment of 25 May 2012, the Family Court ordered three types of measures: a support measure of autonomy with regard to E. (then aged 17) , a measure of support to the applicant concerning I. (then aged 11) and institutionalization measure to the adoption of Mr. (then 8 years old), Y. (then aged 7 years ), IR (then aged 6 years), and L. MS (then aged 4), A. (then 3 years old) and R. (then aged 7 months).

103. The purpose of the request therefore concerns the measure taken against the seven youngest children of the applicant, confirmed by the Court of Appeal of Lisbon and, ultimately, the Supreme Court of years his judgment of 17 September 2015, and executed from the last six of them (see paragraph 35 above).

ii. The institutionalization of measures of the seven youngest children of the applicant for adoption

α) on the precarious situation of the applicant

104. The Court notes that it was primarily criticized the applicant for not providing adequate material conditions for their children and for neglecting them.

105. The Court reiterates that it is not him substituted er its assessment for that of the competent national authorities on the measures that have been taken since they are in fact better placed to make such an assessment in particular because they are in direct contact with the context of the case and the parties involved ( Reigado Ramos v. Portugal , n o 73229/01 , § 53, 22 November 2005). However, in this case, it considers the outset that it was objectively clear that the situation of the applicant was particularly fragile since it had to bear a large family, in this case ten children, that it amounted to only addition owing to the absence of her husband.

106. Now it appears that the applicant survived with 393 EUR family allowance per month and it ensured the food and clothing for the family by using the food bank and donations from individuals or associations. Despite the obvious material deprivation found in the various home visits to the applicant, the domestic authorities did not try to fill these gaps through additional financial assistance to cover the basic needs of the family (eg in food, electricity and running water) and the hospitality of the younger children in family day care to allow the applicant to exercise a paid job. In reality, it appears that social services in charge of support for the family waiting on the part of the applicant, in addition to the regularization of its situation in the country, the formal presentation of a reasoned record exists needs yet they themselves identified and reported (see paragraphs 23 and 26 above – above). The Court believes that the authorities should take concrete steps to allow children to live with their mother, before placing and open a adoptability procedure. It also recalls that the role of social protection authorities is precisely that of helping those in difficulty, guiding them through the process and advise, among others, about the different types of available social benefits, opportunities to obtain social housing or other means to overcome their difficulties ( Saviny v. Ukraine , n o 39948/06 , § 57, 18 December 2008, and RMS v. Spain n o 28775/12 , § 86, 18 June 2013 ). In the case of vulnerable people, authorities must show special attention and must ensure their greater protection ( B. v. Romania (n o 2) , n o 1285 to 1203 , §§ 86 and 114, February 19 2013 Todorova v. Italy , n o 33932/06 , § 75, 13 January 2009, and Zhou v. Italy , n o 33773/11 , § 58, 21 January 2014).

107. While it is true that in some cases declared inadmissible by the Court, the placement of children was motivated by the unsatisfactory living conditions and material deprivation, it has never been the sole reason as the basis for the decisions of national courts: in addition there were other elements such as psychic conditions of the parents or emotional disability, educational and teaching (see, for example, Rampogna and Murgia v. Italy (dec), n. o 40753 / 98 , May 11, 1999, and MG and MTA v. Italy (dec.), n o 17421/02 , 28 June 2005).

108. In this case, it is clear that at no stage of the procedure were discussed situations of violence or abuse against children (see, a contrario , Dewinne v. Belgium (dec. ), n o 56024/00 , 10 March 2005, and Zakharova v. France (dec.), n o 57306/00 , 13 December 2005) and sexual abuse (see, a contrario , Covezzi and Morselli v. Italy , n o 52763/99 , § 104, 9 May 2003, Clemeno and others v. Italy , n o 19537/03 , § 50, 21 October 2008, and Errico v. Italy , n o 29768/05 , § 48, 24 February 2009 ). The courts have not found emotional neglect (see, conversely, Kutzner , cited above, § 68, and Barelli and Others v. Italy (dec.), N o 15104/04 , 27 April 2010) or a worrying state of health or mental imbalance parents (see, a contrario , Bertrand v. France (dec.), n o 57376/00 , 19 February 2002, and Couillard Maugery , § 261). Rather, it appears that attachment links between the applicant and her children were particularly strong, which the Family Court has also noted in its decision (paragraph 34 above). It does not follow the internal record as expertise of children, at least older, has been initiated.

β) on the commitment made by the applicant under the protection agreement, for sterilization

109. The Court recalls that the dignity and human freedom are the essence of the Convention ( Christine Goodwin v UK. [GC], n o 28957/95 , § 90, ECHR 2002 – VI). In the sphere of medical assistance, the tax treatment without the free, express and informed consent of an adult in full possession of his mental capacity does not comply with the right to physical integrity and, a fortiori , with the Convention ( Glass v UK. , n o 61827/00 , §§ 82 – 83, ECHR 200 – II, and Jehovah’s witnesses of Moscow v. Russia , n o 302/02 , § 135 10 June 2010).

110. The Court emphasizes that sterilization is a major attack on the ability of a person to procreate. As this intervention concerns an essential bodily functions of humans, it affects many aspects of a person’s integrity, including physical and mental well-being and emotional, spiritual and family. It can be practiced legitimately at the request of the person concerned, such as birth control or for therapeutic purposes where the existence of a medical necessity is established convincingly. However, the situation is different where such medical treatment has become an adult and sane patient without his consent. Such a design shall be considered incompatible with respect for the freedom and dignity of man, which is one of the fundamental principles of the Convention ( VC v. Slovakia , n o 18968/07 , §§ 106-107, ECHR 2011 (extracts), and NB v. Slovakia , n o 29518/10 , § 80, 12 June 2012).

111. In the present case, the Court observes that the lack of monitoring of adequate family planning has resulted in worsening the financial situation, already difficult for the applicant. However, it considers that the addition of a commitment to the sterilization interested in the protection agreement established with social services is particularly serious (paragraph 18 above – above). It believes that social services could advise the applicant less intrusive contraceptive methods to respond to the lack of monitoring of family planning they found. Moreover, even assuming that the applicant deliberately accepted this approach, as the Government submitted, the Court noted that the applicant finally refused to undergo the operation in question and that, contrary to what the government refusal has clearly been brought against it by both the family Court by the Court of appeal of Lisbon and the Supreme Court, which accepted the facts established by the first instance (paragraphs 34, 41 and 46 below -above). In addition, the Court wishes to point out as a matter of principle, that the use of a sterilization operation can never be a condition for continued parental rights. Consequently, the failure by the mother of his commitment to submit to such a transaction does not in any way be held against it, even in the case of a voluntary and informed commitment on his part.

iii. On the prohibition of any contact between the applicant and his seven younger children

112. If it is not the task of replacing the domestic authorities to regulate matters of custody and access, it is for the Court to review under the Convention the decisions that they have taken in the exercise of their discretion

113. In the present case, the Court found that the prohibition of any contact between the applicant and her children have been the subject of an investment institution for the adoption was pronounced by the judgment of 25 May 2012 the family court, pursuant to Article 1978-A of the civil code which provides for deprivation of parental authority in connection with any investment measure to adopt regardless concrete situations. It notes that this measure was executed June 8, 2012, when the forced placement of children in institutions, and it lasted until 5 March 2015, the date of the lifting of the ban after the decision by it pursuant to Article 39 of the Rules.

114. The Court reiterates its position that additional restrictions are justified under Article 8 of the Convention that when the family was particularly indignant vis-à-vis the child. Or, as it has already raised previously (see paragraph 108 below – above), this was not the case in the present case. Despite the lack of evidence of violence or abuse vis-à-vis her children, the applicant was deprived of any access, while they had between seven months and 10 years and that his appeal against the judgment of the family court was pending. The Court further observes that the six children were actually placed in three different institutions, making difficult to maintain fraternal ties. This measure has caused not only the family breakdown, but also siblings, and went against the best interests of children ( Pontes , cited above, § 98).

iv. On decision making

115. The Court observes that, to justify their decisions the domestic courts are essentially based on the reports of the CCPCJ and the ECJ that accompanied the applicant in previous years. It notes that no psychological evaluation by an independent expert was ordered to assess the maturity and educational and teaching skills of the applicant ( Saviny , cited above, § 58) and a psychological evaluation of children did not longer considered necessary as it appears that the eldest daughters of the applicant ensured a crucial educational role with their cadets, to constitute for them referees. It notes that the Court of Appeal of Lisbon has not given the information that the applicant has submitted in support of his application to show that she had looked for solutions to its problems after being removed his children (see paragraph 41 above). The Court also notes that, in the review of the case on 27 March 2014 the panel of three judges of the Court of Appeal of Lisbon confirmed word for word the previous decision of the single judge by the copy-process paste, which is not an actual review of the situation (see paragraph 42 above).

116. As to the alleged lack of notification of the prosecutor’s submissions as part of the protection process, the Court considers that, since it has no direct knowledge of the case file, it n is not able to decide whether the applicant received or not reporting them. However, it finds that the applicant was not represented by a lawyer in proceedings before the Family Court, which was also not compulsory at the relevant time (it has been since the entry into force of law 142/2015 of 8 September 2015 amending Article 103 of the LPCJP), except in the appeal. As she has said in the judgment Assunção Chaves (cited above, § 82), given the complexity and the issue of child protection proceedings in danger and extremely serious and delicate consequences thereof this both for the child and parents concerned, the Court considers that precautions and additional procedures have been taken to ensure not only of understanding by the applicant of the exact stake in the proceedings, but also effective participation in the latter. The Court notes that the applicant has participated only once in a hearing, namely before the Family Court (paragraph 33 above) for his hearing before that court.

117. In the alternative, the Court notes that, since it is represented by a lawyer – that is to say from the judgment of the Family Court of May 25, 2012 – the applicant took his case to the highest courts, introducing appeals and making repeated requests for access to his children. This act supported procedural ivity contrast to that prevailing in the proceedings before the Family Court, during which the applicant was not represented by a lawyer.

α) Conclusions

118. Notwithstanding the margin of appreciation enjoyed by the respondent State in the present case, the Court does not consider that the institutionalization of measures for their adoption, imposed on seven of his children, Mr. , Y, R, L., S., A. and R., and executed from the last six, to the extent that it deprived the applicant of her parental rights in respect of his children and contacts with them, causing the rupture of the biological family relationship was relevant and adequate in relation to the legitimate aim pursued and therefore necessary in a democratic society. To arrive at this conclusion the Court has had particular regard to the above considerations, namely, the absence of violence or abuse physical (compare R. and H. v. United Kingdom , n o 35348/06 , § 85, 31 May 2011), sexual or psychological against children, the existence of strong emotional bonds with them, the lack of response from social services to the physical distress of the applicant s mother a large family, exercising his almost single parenting. It also notes that the courts had not properly considered the cultural differences in the context of the proceedings in question and raises the pressure on it for submission to a sterilization operation under the procedure protection of minors.

119. Since the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , cited above, § 59), the Court considers that the measures adopted by the placement of children in courts of the applicant for adoption, depriving her of her parental rights, have spared a balance the interests at stake in the domestic proceedings ( R. and H. , supra, § 72). It does not appear, moreover, that the courts have considered other less restrictive measures, including foster care and institutional care, established by Article 35 § 1 e) and f) of the Law the protection of children and youth at risk (see paragraph 61 above).

120. In conclusion, on the basis of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L. , MS, A. and R. for their adoption (paragraphs 104-107).

121. In addition, there has been a violation of Article 8 of the Convention that the decision of placing children in an institution for adoption took account of the failure by the applicant to its commitment to undergo sterilization by tubal ligation (paragraphs 109-111).

122. The Court also considers that there has been interference with the right of the applicant to respect for his family life due to the prohibition of any contact between her and her children. There has therefore been a violation of Article 8 of the Convention in this regard (paragraphs 112-114).

123. Finally, there has been a violation of Article 8 of the Convention because the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant (paragraphs 115-117).

III. APPLICATION OF ARTICLE 39 OF THE RULES OF COURT

124. The Court recalls that according to Article 44 § 2 of the Convention, this judgment will become final a) when the parties declare that they do not require the transfer of the case to the Grand Chamber; or b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c) when the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.

125. The Court considers that the measures it has indicated to the Government pursuant to Article 39 of Regulation (paragraphs 53-56 above) should remain in force until the present judgment becomes final or that it makes a further decision in this regard. After the final judgment, the applicant may, if necessary and if desired, make a new application for interim measures under Article 39 of the Rules of Court.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

126. Under Article 41 of the Convention,

“If the Court finds that there has been violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation consequences of this violation, the Court awards the part injured, if necessary, just satisfaction. ”

127. The applicant claimed 150,000 euros (EUR) for pecuniary damage.

128. The Government left to the discretion of the Court.

129. Given the circumstances of the case and the four findings of violations of Article 8 of the Convention contained in paragraphs 120, 121, 122 and 123, the Court considers that the applicant suffered non-pecuniary damage. Given all the evidence before it and equitable basis, as required by Article 41 of the Convention, the Court considers it appropriate to award the applicant EUR 15 000 for non-pecuniary damage .

130. Under the particular circumstances of this case and the urgent need to end the violation of the right of the applicant to respect for his family life, the Court invited the national authorities to review, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children (see, mutatis mutandis , Bondavalli v. Italy , n o 35532/12 , §§ 83 and 91, November 17, 2015, and RMS, § 101).

B. Costs and expenses

131. The applicant made no application for costs and expenses. The Court considers that there is therefore no need to grant it to award under this head.

Default interest

132. The Court considers it appropriate to base the default interest rate on the interest rate on the marginal lending rate of the European Central Bank plus three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Decides to continue to indicate to the Government, pursuant to Article 39 of the Rules, it is desirable in the interests of the proper conduct of the proceedings, to take appropriate measures to ensure the right of visit the applicant to his children having been an institutionalization for their adoption until the present judgment becomes final or she makes another decision in this regard;

3. Holds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L., S., A. and R. for their adoption ;

4. Holds that there has been a violation of Article 8 of the Convention on account of the fact that children’s placement decision in an institution for adoption took account of the failure by the applicant of its commitment to submit to sterilization by tubal ligation;

5. Holds that there has been a violation of Article 8 of the Convention on account of the ban on contact between the applicant and her children M., Y, R, L, MS, R and A. . June 8, 2012 to March 5, 2015;

6. Holds that there has been a violation of Article 8 of the Convention due to the lack of effective involvement of the applicant in the decision making process that resulted in six of institutionalization of children for their adoption ;

7. Holds that local authorities will reconsider, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children;

8. Holds

a) that the respondent State is to pay the applicant, within three months from the day the judgment becomes final in accordance with Article 44 § 2 of the Convention, 15 000 EUR (fifteen thousand euros), plus any tax that may be chargeable to tax for non-pecuniary damage;

b) that from the expiry of that period until settlement, this amount will increase to simple interest at a rate equal to the marginal lending rate of the European Central Bank during the period, plus three percentage points;

9. Rejects the claim for just satisfaction to the remainder.

Done in French, and notified by 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-PassosAndrás Sajó
GreffièrePrésident

At this stop is attached, in accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court of the separate opinion of Judge A. Sajó.

AS
EFF

CONCURRING OPINION OF JUDGE SAJÓ

I fully agree with the judgment. I think it is important to emphasize that the best interests of the child is – except in exceptional cases – to be with her parents. The 1989 Convention on Children’s Rights provides in Article 3 § 1, that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A primary consideration does not exclude the existence of other considerations and in the presence of a Convention right, we must strive to harmonize different interests. However, it is important to emphasize that the best interests of the child is not in principle opposed to the fundamental right of parents to live a family life with their children. The rule of the best interests of the child shall be construed as a rule excluding the fundamental rights of parents. Moreover, we find this consideration in Article 9 § 1 of the Convention on children’s rights:

“States Parties shall ensure that the child is not separated from their parents against their will, except when competent authorities determine, […], that such separation is necessary for the best interests of the child. ”

Similarly, the Court has recognized that it is as much in the child’s interest and in that of his parents that the relationship between he and his family are kept, except in cases where the latter has shown particularly unworthy: break those links back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time v enu, “reconstitute” the family ( Gnahoré v. France , n o 40031/98 , § 59, ECHR 2000 – IX).

According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family (see, mutatis mutandis , Kroon and others v. the Netherlands , 27 October 1994, series A n o 297-C, § 32, and Wagner and JMWL v. Luxembourg , n o 76240/01 , 28 June 2007). For parent and child of each constitutes a fundamental element of family life. Moreover, if the Court finds a measure concerning interference with the exercise of rights protected by the Convention is “necessary in a democratic society” requires that the reasons given for the measure in question is relevant (and sufficient ).

Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).

Originally the unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.

National Adoption Week – An adopter’s view

We are grateful for this post from an adoptive parent, who calls for an end to the distorting rhetoric about adoption; without honest and open discussion of what is gained and lost through adoption, we risk losing focus on what should be the fundamental core of all our endeavours here –  the children and what they need.

During National Adoption Week, as a society, will we be able to finally have the conversation we urgently need? Or will rhetoric and political agendas continue to stifle that debate?

I have come to understand that adoption is more about loss than gain

Today is the start of National Adoption Week (NAW) when Adoption Agencies (on behalf of the Government) want and need to inform the public about how their country needs them. Not to go to war but to parent children and young people through adoption when nothing else will do

I am an adopter. I have a few problems with National Adoption Week. I probably shouldn’t because I can recall seeing some daytime tv 16yrs ago and thinking – `yep, that is what we need to do.’ Hubby and I would make good parents and if children need a forever family, that can and should be us.

Over the years that followed that day, I have come to understand that modern adoption is more about loss than gain. I hope you will understand why I think that by the end of this week.

I am a member of a peer support group for the parents of traumatised adopted children and young people. Trauma is a term we think best describes the losses our children have lived with. It describes their loss of birth family, identity, childhoods where they had rights to be kept safe, physically and psychologically.

A few weeks ago a few of us attended the first Family Law Class open to all . It was a good class. We were well aware that ‘our’ children’s birth families could be sat next to us and that was ok. It was ok because we know about their loss, their difficulties with communicating and dealing with professionals at an immensely difficult time in their lives. We know because a minority of experienced adopters go through the same experience with social services as many struggling birth parents. I will talk about that later this week.

Today I want to talk about what I feel is often unsaid during NAW, about birth parents, adopters and ‘our’ children.

The elephant in the room – what will happen if my child’s birth parents didn’t harm them after all?

Those professionals and interested adopters will know that the answer to the question is – probably nothing. The circumstances under which any Judge will reverse a decision involving an Adoption Order (certainly after some time has elapsed) are very rare.

But experienced adopters are well aware of the miscarriages of justice that have happened in the UK. I speak for many adopters who feel that these miscarriages of justice are a travesty. A child and maybe their siblings will have lost their birth parents, each other and everything they hold dear. They may be moved from pillar to post within the care system, being sent to live with strangers and one day, will have to learn that none of that should have happened. Such a loss can never really be put into words can it?

Adopters feel for birth parents where miscarriages of justice have happened. We have genuine empathy for them and hope that agencies (& if necessary the courts) do everything in their power to ensure that those children, birth parents and adoptive families are enabled to build a mutually rewarding relationship in the future. It can be done, I am sure of it. Society needs it to be so.

But what of those children and young people that were rightly removed from their birth parents?

People approved for adoption will have been told and will have read reports written by social services about the children’s life with birth parents. We will have been told that the children need a new `forever` family because birth parents are not able to safeguard them. The birth parents are deemed by all in authority to not be `good enough parents’.  This is my first problem with NAW.

NAW will have you, the person wanting to be a parent, believing that that is absolutely the case. It may well be, but I have been concerned for a number of years that it isn’t that simple.
Prospective adopters need to believe that for `our` children to have been placed for adoption, their birth families must not have been ‘good enough’ to do the job. Parents need to keep the children safe, not to abuse or neglect them, to put the children’s needs above their own. Parenting isn’t just about loving them. Social services are meant to prove that to be the case. Family law courts are supposed to ensure that that is the case before they agree to a placement order and thereafter an adoption order. Adopters need to believe that social services have also ruled out that other forms of permanence would not be in their child’s best interest too.

We will be led to believe that some birth parents should either never have direct contact (I prefer to say `have a relationship with`), or should absolutely have a relationship. We need to know that all the decisions made in relation to `our` children are made with the best of intentions.

We adopters need to know these things because contrary to some rhetoric, adopters do not want to steal children, we are not a market of middle class do gooders or people that need to have a child as a fashion accessory. We are not the reason that children need to be removed from the otherwise loving caring homes any more than the government have `targets` for removing children to support some black market.

We are just people who know we can give love, nurture and care to traumatised children and young people. We can and do put our children’s needs above our own.

My message throughout NAW is that children and young people must always be at the core of everything that is done in their name.

`OUR’ kids must always be the priority.

A Social Worker’s perspective on the judgment in W (A child)

This is a post by Kate Wells a retired social worker, who sets out her views about the case of W (A Child) [2015] – an extra-ordinary judgment, both in its decision to refuse to make an adoption order and return W to her father’s care and also for the language used by the Judge to criticise the decision making of Judges, social workers AND the guardian. There is now an appeal lodged against this judgment and we will await further news. 

I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.

 

Dealing with the threshold criteria

The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. The DJ had failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that:

The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012. What he does not accept is the allegations in respect of the ‘toothbrush’ incident with [X] in November 2012 and the injury to [Z]’s ear in December 2012.
Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged.
As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation.
I am satisfied however otherwise the threshold is crossed.”
There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.

It would be interesting to know exactly what grounds the LA put forward to prove significant harm. Is there any way that this can be sought? I also wondered why there were no findings in relation to the baby falling from the sofa, at aged under 4 weeks, although the baby had been examined at hospital and no serious injury found.

 

Criticisms of the SW Evidence

The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.

Given the DJ’s criticism of the social worker’s unconvincing evidence, in an application to remove all 4 children from the care of the father, it seems to me all the more curious that the DJ made a Care and Placement Order in respect of W. Incidentally is it within the Judge’s remit to order that a social worker be replaced – suppose it is! Is this a common occurrence?

18. The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father.

It seems clear that Ms Hendry was well out of her depth in proving that these 4 children were being significantly harmed. The substitute social workers must have felt very anxious and intimidated, but did themselves no favours by repeating the same arguments i.e. the need for the father to change, and repeated allegations of physical abuse, which had been disregarded by the DJ. It could be however that the DJ’s judgement was also “erroneous” in this respect, but that doesn’t excuse the LA from persisting along that track.

However there is no mention of the LA lawyer and why an application to remove 4 children from their parents was not scrutinised to ensure that the evidence met the standard required to prove significant harm in the balance of probabilities.

 

What is the Impact on W of being moved 5 times in 3 years?

41. Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instance he thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”

Here we have a clinical psychologist talking of “good attachments” – good, as opposed to “bad”……….grrrh. There are references in the judgement to “strong” attachments – I MUST make those notes on attachment theory. However I am really concerned that Dr W can believe that this child should be moved back to her father. The wrong decision was almost certainly made by the DJ but this child was moved 3 times before moving to her adoptive placement, where she has lived for 16 months, and Dr W is recommending a 5th move for a child not yet 3 years old. Does he not realise that the first 3 years of a child’s life are the most important years of all, and lay down the foundation for the remainder of her life, be that positive or negative.

 
All this talk of what W is going to think when she is 12/13/14 and asks why she was adopted and not the other 3 children, is pure conjecture, nothing more, mothing less and it seems to have totally influenced the Judge. There is absolutely no way of knowing what W might think about the reasons that she was adopted. It is just as likely that she will be glad that she was adopted especially if she has had a happy and untroubled childhood and a family who will continue to support her throughout their lifetime.

 
Balanced against this child being subjected to 5 moves before her 3rd birthday it is, as far as I’m concerned a “no brainer” (much as I dislike that phrase) W was placed with her adoptive family at the age of approx. 1.5 years and will be 3 years old in Nov this year. We know nothing of the early weeks and months of W’s placement with the prospective adopters, and the difficulties of settling a child who had 3 moves in 18 months.

 
At some point in the judgement, the Judge acknowledges the trauma for the prospective adopters but comments that their failure to re-assure the court of their willingness to facilitate W’s move back to her father as evidence of them not putting the needs of the child before their own. I think this comment was grossly unfair and unnecessary. It was also unfair to put the adopters on the spot by asking how they would explain to W that she was adopted whilst her 3 siblings remained in the care of their father, and again the Judge was critical of their inability to provide a satisfactory response. Prospective adopters are all told that the child must know that they are adopted right from the word GO – and it is usually done by means of a life story book which should contain pictures of the birth parents/siblings, other members of their extended family, foster carers etc. Photographs can be added as the child grows. Birth mothers are usually referred to as “tummy mummies” and all explanation obviously have to be age appropriate. However to expect adopters to be able to “fast forward the tape” to answer the possible questions of an older child is simply unfair, as so much will depend on the child and the nature of any questions, if indeed any are forthcoming. Many adopted children are not interested in their background although this tends to change once they are adult and especially after giving birth to their own child. This is a key time for searching for birth mothers, though many adoptees wait until the adoptive parents have died before searching.

 

The wishes and feelings of W’s siblings

42. Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.

What I wonder is a “strong awareness” – yes the children know they have a little sister but they haven’t seen her for over 18 months, though given their ages, they will remember her of course. On what basis does Mr H make his assertion that W’s return to the family reduce X’s anxiety? It is small wonder that X is anxious given her family background and the fact that her mother is seriously mentally ill, and she therefore is not able to have a good relationship with her, something that is very important to young women on the brink of adolescence. There is no mention of a supportive granny or aunt who may be able to offer X the support she will need as she reaches puberty. I think it naïve in the extreme that Mr H believes that having W back in the family will alleviate X’s anxiety – it could well increase it, especially as W is going to be very confused and upset at the move, and this distress will be played out in the family home, in my view adversely affecting all 3 of the other children. The father will of necessity need to divert his attention to W and so the other children could be disadvantaged as a result.
So much talk of “finely balanced” ……….

 

Matter is finely balanced, recommendations vague

43. Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but as much of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”

Seems to me that Mr H has bowed to the “superior knowledge” of the clinical psychologist and does not have the courage of his convictions. Any experienced social worker should know that to move a child 5 times in her first 3 years of life is NOT acting in her best interests. You don’t need to be a psychologist to know this, and of course Dr W doesn’t seem to know that either.

44. He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.

What do these vague recommendations actually mean? Yes I agree X needs support, but where is this “mentor” going to come from – the LA won’t be in the business of paying anyone to perform this mentoring duty, and what is meant by “time out” ??? Hmm the Judge doesn’t seem to be concerned with vague comments that don’t mean anything.

45. As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”

Mr H “feels” – the court shouldn’t be concerned with “feelings” surely, they should be concerned with evidence. This is a family that have all suffered in their different ways, the mother because of her mental health issues, the father attempting to save the marriage and the stresses and strains of doing that, alongside being the primary carer for 4 children, one just a few weeks old. And the children have witnessed their mother in irrational and angry states and attacking their father on at least one occasion, and the turmoil and distress this must have caused them, and now the mother is no longer in the family home – and Mr H believes that the “biggest remaining upset” is that the family “see themselves as disjointed” – I’m sure they do, because they are, but not necessarily because W was missing.

 

What will happen in the future?

46. Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement.

Ah I see Mr H can see into the future! I am simply astonished at this comment and even more astonished that it has been accepted by the Judge.

48. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.

Given Mr. H’s comments about the internet, this could well be true for any child who has been adopted and it is a valid issue, but if this is going to weigh so heavily in deciding a child’s future then it surely will only be a matter of time before it will mean an end to a child’s future being secured by way of adoption or any other form of permanent care. And again we see Mr. H’s capacity to see into the future, evidenced in his comments about the possibility of the prospective adopters moving abroad during W’s minority! Astonishing!

 
As you can see I am very frustrated about Mr. H’s “expertise” but that changes to anger when he assert that “a breakdown of the adoptive placement is likely because the As are part of the proceedings and voicing resistance to her going home.” Dear god, of course they are resistant to her going home. Mr H claims to have an expertise in adoption and adoptive placements, and yet he can make such a ridiculous comment. They would be very strange adopters if they would happily agree that this child, who they have loved and nurtured for 16 months and who they envisaged being a part of their family for ever, should be returned home to the care of her father.

 
Maybe Mr H spelled out in details just how exactly “there is a lot more to be gained by W going home.” Or then again maybe he didn’t, but he’s impressed the Judge, so that’s all that matters.

 

Psychobabble and defensiveness

47. I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
48. The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads”[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight

It is very odd in my view, and totally unacceptable that the social worker with case responsibility does not file a statement, but this is done by her team manager and I am sure the Judge is right in thinking that Ms Wilkinson did not feel she was capable of making a statement and being cross examined. Maybe the Ms W was a newly qualified worker. But Ms Alsop’s noble attempt to step in fell on stoney ground, and as much as I dislike the term “psychobabble” as a derogatory term, I have to agree that her comments made little sense.

 
I have tried to de-gobbledygook the comments made by Ms A: – The father has had such a traumatic childhood that he can’t really talk to the children on their level, and he has tried to shut out the pain of the past, and this prevents him from understanding the distress the children are suffering. Best I can do! However this is opinion not evidence and it doesn’t make much sense even when phrased in simple language

Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.

Poor Ms A – the team manager who stepped in to show the social worker how it’s done – maybe she should remember that when you’re in a hole, stop digging!

In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.

Churlish of Ms A to disregard the counselling the father has undertaken. Ok there are no quick fixes and 11 months (or even 11 years) are sometimes not enough to alleviate the long term difficulties associated with a traumatic childhood, as these can persist through the lifespan, often in the form of PTSD, but credit should be given to the father for seeking help via counselling. MsA is very hung up on the notion of the father “using disassociation as a defence against the trauma he has suffered” expressed previously as “adopting maladaptive strategies………

To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge.

I’ve stopped feeling sorry for Ms W – there is absolutely no excuse to be grudging and defensive in written and oral evidence and demonstrates a complete lack of even a modicum of professional wisdom and integrity. I have come across this attitude when working as a Guardian (before guardians were employed by CAFCASS) and we worked on reciprocal arrangements with neighbouring LAs, and when I was working independently. However I still think it was regrettable that the DJ made the serious error in the first place and this must have influenced the LA social workers that they had a good case. Again where was the LA lawyer in all this………….?

 

Guardian’s evidence – beyond shocking

At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.

Shocking, clearly hopelessly incompetent Guardian – “at sixes and sevens with each other” WTF! And “systemically closed” – I have absolutely no idea what this means and I doubt he did either. “Shut out” is a guess!

I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.

Beyond shocking – sounds like he just didn’t care about these children or their future, and having been criticised for aligning himself with the view of the LA, he grudgingly aligned himself with the expert opinion. I imagine this was to prevent any further criticism from the Judge, rather than anything else.

 

Conclusions

Well Sarah this took rather longer than I expected and I am beyond burning the midnight oil. I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.

However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests. I think far too much weight was given to what she might think about her adoptive placement when she is old enough to understand – and how this influenced the Judge. At one stage he mentioned that W will have some residual memory of her father and siblings at the last contact, which must have been some 18 months ago. I absolutely disagree and in the child’s sense of time, at her age, she can’t possibly have this kind of recall.

 
There is not a great deal of criticism from the Judge about the DJ’s judgement, other than to say it was “erroneous” (something of an under statement) and again no criticism of the LA lawyer. What IS it with these lawyers – do they not understand the need to ensure that there is sufficient evidence for the LA to prove their case. That surely is a fundamental task of such a lawyer.

 
The other issue is the mother of the children, and little is said about her in the judgement. I think I read father has a RO on the 3 children. I do wonder if the LA were critical of the fact that the parents were obviously having a sexual relationship which resulted in the birth of W. This wasn’t made explicit, but I wonder if it was somewhere in their thinking, as there were comments that the father was putting his relationship with the mother before the needs of the children.

 
I also wonder about the mother’s mental health. I note that she has a diagnosis of recurrent depressive disorder with Emotionally Unstable PD, but I wonder if there is also a psychotic element to her mental illness, as some of the descriptions of her behaviour would suggest this could be the case. She has also been sectioned under the Mental Health Act on more than one occasion I think and it’s very unusual for the use of a Section in the absence of a psychotic illness.

 
If this is the case, then there is the possibility of this illness emerging in one (or more) of the children, as psychosis is by and large a hereditary condition. This doesn’t seem to have been addressed at all. I think EUPD is a bit of a “catch all” diagnosis and until relatively recently wasn’t seen as a treatable mental illness. Very often though patients are wrongly diagnosed and this may well be the case with this mother. Mental health services as I’m sure you know are very stretched and it is easy for people to “slip through the net” as it were.

 
Ah well, those are my thoughts/views for what they’re worth.

Kate Wells

I don’t want my child to be adopted

What can I do?

it will depend at what stage of the proceedings you have reached and what orders have already been made. This post looks at what happens once the final care and placement orders have been made.

A child can only be adopted when three orders have been made – a care order, a placement order and finally, an adoption order. Care and placement orders are usually made at the same time. A care order allows the State to decide where your child should live. A placement order allows the State to put your child in a family that may decide to adopt him or her. An adoption order confirms that this family is now the legal family and the birth parents no longer have any legal connection to their child.

  • Parents are currently in care proceedings and no final order has been made It is really important that parents argue their case in the care proceedings while they are happening – you need to engage with the case against you at the time as it may be too late to do anything to change the situation once a care order is made. See the discussion below.
  • Final care order made but no placement order. If a placement order hasn’t been made yet, you may be able to appeal against the care order or apply to discharge it. We discuss this in another post – ‘After the Care Order.’
  • Final care order and placement order made – Parents can apply for leave to revoke a placement order under section 24 of the ACA 2002, IF:
    • their child hasn’t yet been placed for adoption; and
    • they can show a ‘change of circumstances’ since the placement order was made.
    • The form to make an application to revoke a placement order is here. 
  • Potential adoptive parents have applied for an adoption order – Parents can apply for permission to contest the making of an adoption order under section 47(7) of the ACA 2002 but only if they can show a ‘change of circumstances’.

 

Challenging an application for an adoption order

There is a useful and clear discussion about the process in the case of A and F (children) [2015]. The Judge set this out clearly at paragraph 27 of the judgement for the benefit of the mother who was a litigant in person. However, because she did not accept that care orders should have been made in the first place, she did not accept that any criticism could be made of her parenting and therefore she was unable to engage with the essential steps to challenge her children’s adoption.

This underlines that it is essential to challenge a care order as soon as possible if you do not consider it was validly made – it is too late to wait until the time that applications are made to apply for adoption.

As the Judge commented at para 26 of his judgment:

Indeed, the majority of the mother’s statement is concerned with the repetition and correction of perceived past wrongs sustained by her. This was also the position with regard to her oral submissions. This means that inevitably she does not accept as a “starting point” District Judge Shaw’s decision nor his findings. As a matter of logic, therefore, she finds it impossible to address the issue of “changes in circumstances” because broadly her parenting circumstances, when the children were removed, were perfectly acceptable and therefore no change is required. Accordingly, an intellectual impasse results

There are three things parents need to do:

  • Step One: establish a change of circumstances. The court has already decided by making a final care order that the parent has caused or is likely to cause a child significant harm. Therefore the parent must show the court what is different NOW. This is discussed in more detail below;
  • Step Two: convince the court it is right to give permission to argue against an adoption order being made.  This means that the court will look at all the relevant issues in the case and think about what the impact would be on the children. The children’s welfare is the most important consideration for the court. If the parent doesn’t succeed in getting permission, the matter ends there.
  • Step Three: Persuade the court to refuse an adoption order IF a parent is given permission to argue against the making of an adoption order, they will have to persuade the court to reverse the direction in which the children’s lives have travelled since the Care and Placement proceedings. Obviously, the longer the children have been in their potential adoptive placement, the harder this will be.

This post will look at these issues in more detail below.

Although the courts try to separate out the different questions, to make it easier to analyse the issues, it is clear that each question has the potential to be significantly wrapped up in the other questions. For example, the ‘prospect of success’ the court is looking at refers to your prospect of success in challenging the order, NOT your prospects of success in getting your child home.

However, if you have very little chance of persuading the court that the child should come home, that issue is certainly going to be on the court’s mind. It is very difficult to successfully challenge placement or adoption orders,  as by the time such challenge is made the child has been living away from the parents for many months, even years and the court is going be worried about the impact on the child of possibly another move from a home where they may now be settled.

In Re L [2014] 2FLR 913 at paragraph 45, Lady Justice Black said this:

“When a judge considers a parent’s prospect of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.”

STEP ONE: Further discussion about what does ‘change in circumstances’ mean?

In a nutshell, any change in circumstances is an issue of fact. We can get the following principles from the case law:

  • The test should not be so difficult that it rules everyone out – parents shouldn’t be discouraged from trying to improve their lives.
  • The changes must be relevant or material to the question of whether or not leave should be granted.
  • The changes are not confined to those of a birth parent, but they may include changes occurring in the child’s life (see Re T [2014] EWCA (Civ) 1369).
  • The necessary change in circumstances … does not have to be “significant”; the question is whether it is “of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings”: Re P, para 30.

There is a useful article here by suesspiciousminds which considers the relevant case law in this area, and in particular the case of The Borough of Poole v W [2014] EWHC 1777. The Judge concluded at paragraph 25 of his judgement that the parents could not succeed, despite making considerable changes to their lives:

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption.

My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.

For an example of a case where a mother succeeded in appealing against the initial refusal to allow her to argue against a placement order, see the case of G (A Child) [2015] EWCA Civ 119, discussed in this post by suesspiciousminds. The Court of Appeal agreed that a change to the child’s circumstances could also be relevant:

The “change in circumstances” specified in section 24(3) of the 2002 Act is not confined to the parent’s own circumstances. Depending upon the facts of the case, the child/ren’s circumstances may themselves have changed in the interim, not least by reason of the thwarted ambitions on the part of the local authority to place them for adoption in a timely fashion. I would regard it as unlikely for there to be many situations where the change in the child’s circumstances alone would be sufficient to open the gateway under section 24(2) and (3) and I do not suggest that there needs to be an in-depth analysis of the child/ren’s welfare needs at the first stage, which are more aptly considered at the second , but I cannot see how a court is able to disregard any changes in the child/ren’s circumstances, good or bad, if it is charged with evaluating the sufficiency of the nature and degree of the parent’s change of circumstances.

Further reading about ‘change of circumstances’.

  • See this post from the UK Human Rights blog – Challenging Adoption order using Human Rights.
  • For an example of a case where an appeal against an adoption order did not succeed, see R (A Child) [2014]
  • See the case of Re T [2014] for discussion about applying to revoke a placement order and what is meant by ‘change of circumstances’.
  • For a case discussing what happened when a parent wanted to contest an adoption order by asking the court to look at fresh evidence, see the case of G (A Child) [2014].

STEP TWO: If there is a change of circumstances, should the court give you permission to challenge the adoption order?

In relation to Step two this an issue of judicial evaluation or discretion which means that different judges can and do make different decisions but could not necessarily be challenged on appeal. ‘Exercising a discretion’ means you are making your own value judgment and there is usually a pretty wide range of possible outcomes that would be accepted. Provided of course that the Judge has applied the correct law and facts.

The parent must have ‘solid grounds’ for making the application. Paragraph 74(i) to (x) of Re B-S identifies the features to be weighed in the balance.

  • Prospect of success here relates to the prospect of resisting the making of an adoption order, not the prospect of ultimately having the child restored to the parent’s care.
  • The issues of ‘change in circumstances’ and ‘solid grounds for seeking leave’  are treated as two separate issues in order to analyse them BUT in reality they are inter-linked and one may follow the other
  • If the Judge finds a change of circumstances AND solid grounds for seeking permission, the Judge must then consider child’s welfare very carefully.
  • The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible.
  • But, the child’s welfare is paramount.
  • To find out what the child’s welfare needs, the judge must take into account ‘all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. The use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
  • The court needs proper evidence, but this doesn’t always have to be evidence from people speaking to the court. Often applications for leave can be fairly dealt with on written evidence and submissions.
  • As a general proposition, the greater the positive change in circumstances and the more solid the parent’s grounds for seeking leave to oppose, the more significant must be the detrimental impact on the child if the court is going to refuse to give them permission to challenge the adoption order.
  • The fact a child is now living with the prospective adopters or that a long time has passed, cannot determine the matter.
  • BUT the older the child and the longer he/she has been living with the prospective adoptions, the worse it is likely to be to disturb that.
  • The court should not attach too much weight to any argument that the proceedings are having an adverse impact on the prospective adopters – but this isn’t a trivial point and judges must try to minimise this impact by robust case management.
  • The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”.

Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

The court will be well aware of the seriousness of adoption and the decision of the Supreme Court in the case of Re B [2013] 1WLR 1911.

STEP THREE: Will the court reverse the ‘direction of travel’ for the child and refuse to make an adoption order?

It is quite rare for the court to refuse to make an adoption order. One example of such a case is A and B v Rotherham Metropolitan Borough Council [2014] which is the first since the 2002 Adoption Act. The court removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.

The Judge commented at paragraph 95:

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.

It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

The Judge had this to say about the ‘nothing else will do’ test at paragraph 15:

With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”… Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires.
If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

The decision of the Court of Appeal in July 2016 in W (A Child) [2016] EWCA Civ 793 dealt explicitly with four very important questions:

  • The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
  • The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;
  • Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
  • Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

The court said this about the ‘nothing else will do’ test at paragraph 68 of their judgment:

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

The court was clear that there is NO ‘presumption’ or ‘right’ for a child to be brought up by natural family and that those assessing the case had wrongly believed there was – thus the focus on the impact of removing A from the only parents she had known for 2 years, was not properly considered.

The issue is only and always the child’s welfare. The matter was returned to another judge for a re-hearing. It will be interesting to know the outcome.

Time Limits for Appeals.

For more detailed discussion of the rules that apply to time limits, see this post about appealing against a care order. It is very important that you tell the court that you want to appeal and why you want to appeal within 21 days of the decision you want to challenge.

The court have considered appeals out of time in the case of re H (Children) [2015] and emphasised how important it is to stick to time limits in children cases. Although the father in this case was allowed to appeal some 8 months after the first decision, the court emphasised that this was ‘exceptional’. See paras 33 and 34 of the judgment:

33.As a matter of law, if no notice of appeal is lodged during the 21 days permitted for the filing of a notice, a local authority should be entitled to regard any final care order and order authorising placement for adoption as valid authority to proceed with the task of placing the child for adoption. If that process has subsequently to be put on hold in order to allow a late application for permission to appeal to be determined, the impact upon the welfare of the child (particularly where prospective adopters who have been chosen may be deterred from proceeding) is also too plain to contemplate.

34. The problem that I have described is a necessary difficulty that arises from our system which contemplates that, notwithstanding the expiry of the 21 day period for lodging a notice of appeal, the court may, where to do so is justified, permit an appeal to proceed out of time. There will thus inevitably be a period after a late application for permission to appeal where time is taken to process the application before it is determined. Whilst accepting the inevitability of this source of, in some cases, highly adverse impact on the welfare of a child, every effort should be made to avoid its occurrence. One strategy which would seek to avoid the problem would be for the judge in every case where a final care and placement for adoption order is made to spell out to the parties the need to file any notice of appeal within 21 days and for the resulting court order to record on its face that that information was given to the parties by the judge. Secondly, this court and any appellate judge in the Family Court, must continue to strive to process any application for permission to appeal in a public law child case with the utmost efficiency. Finally, the fact that an application for permission to appeal which relates to a child in public law procedure is out of time should be regarded as a very significant matter when deciding whether to grant ‘relief from sanctions’ or an extension of time for appealing.

What’s the difference between adoption and fostering?

But why have adoption at all? What is wrong with fostering? Then mistakes can be put right later.

A child in foster care will be placed with parents’ consent under section 20 of the Children Act or because a care order was made. The parents will retain their parental responsibility. Foster carers are trained professionals who are not providing a ‘family’ for a child in the same way adoptive parents would. That is the key distinction between adoption and fostering. 

In the case of Re V [2013]  the Court of Appeal decided that a Judge was wrong to agree that long term fostering would best meet the child’s needs. The Court of Appeal set out the key differences between the adoption and long term fostering.

  • Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.
  • Once an adoption order is made, it is made for all time.
  • Contact arrangements are different between fostered and adopted children. LA has a duty to allow reasonable contact with a child in care.
  • An adopted child is not subject to any further LA intervention and can live ‘normal’ family life without any ‘stigma’ of being child in care.

It is clear that adoption is currently seen and has been seen for some time by our domestic courts as the ‘gold standard’ of outcomes for children.  But this isn’t a view shared by all – we certainly seem to be out of step with the rest of Europe.

Mostyn J commented in Re D (a Child) [2014]

The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. (NB However, Mostyn J has got this wrong – every European country permits adoption without the parents’ consent – see this post from the Transparency Project).

 

Critics of the current system further ask why there needs to be adoption at all, why can’t children go into foster care so they can return to their parents if it is later found that they shouldn’t have been removed from home in the first place or if the parents can make changes to the way they parent?

The problem that we have is the near universal agreement from child psychologists and other experts about the crucial importance to a child of finding a permanent home and being able to become securely attached to his or her adult carers. You can read here about some of the problems children face if they can’t develop a secure attachment to their adult carers.

If a child has been away from his or her birth parents for many months or even years and particularly if that child has now formed a secure attachment to an adoptive family, there is serious concern about the emotional harm that would be done to the child if he or she was removed from the adoptive family to return to the birth family.

Suggestions have been made that the birth families and adoptive families could ‘parent together’ in such cases but that would require a degree of emotional maturity and an ability to put bitterness and recrimination to one side, which may be beyond most people’s abilities.

This explains why very sadly, the Websters weren’t able to get their children back, despite a court concluding that they ‘probably’ were the victims of a miscarriage of justice because their child’s injuries may have been due to scurvy, but this wasn’t recognised at the time.

However, the Council of Europe reported in 2015 about different European countries and their attitudes to adoption and commented unfavourably about the UK’s refusal to reverse adoption orders in such circumstances; para 74:

My attention has been drawn to a handful of cases which are extremely tragic and concern miscarriages of justice. In several of these cases, an underlying medical condition of the child such as brittle- bone-disease or rickets was overlooked, and the children were placed for adoption (without parental consent). The tragedy is that even when the parents finally win in court, and can prove their innocence, they cannot get their children back, because a flaw in the English/Welsh legal system means that adoption orders cannot be reversed in any circumstances – in a misunderstanding of the “best interest of the child” who actually has a right to return to his/her birth family.

What does seem to be very clear is that we need more and better consideration of issues such as contact with birth families after an adoption order is made;  see Re W [2016] and the comments of McFarlane LJ in the Bridget Lindley Memorial lecture October 2016 (mentioned below).

The ‘push’ for adoption.

There are serious concerns that an ideological ‘push’ for adoption is masking proper consideration of statistical trends and that adoption is being over promoted as the best outcome for children. An example of how the best interests of the child got over looked in a quest to find her an adoptive placement, see this case involving the London Borough of Hillingdon. Family Law Week reported:

The LGO found that during her time in care the council has spent two years looking for a family to adopt the girl, who has autism and other developmental delays, but none was found. She has been living with her current foster family since May 2011. The council asked the current foster carers to become special guardians, which would mean a more permanent arrangement, but the family told social workers they would need the extra long-term support they would receive if she remained a looked after child, and declined to become special guardians.

Because of the family’s refusal social workers carried on looking for an alternative permanent family, despite all evidence that this was not in her best interest. This uncertainty about her future has caused the girl significant stress and anxiety, damaging her welfare, her emotional wellbeing and her ability to learn.

The girl’s advocate contacted the LGO complaining that the council was not listening to the wishes of the girl to stay with her foster family.

The Adoption Leadership Board was concerned by the significant reduction in the last 12 months of placement orders made and decisions by LAs to pursue plans for adoption. Lucy Reed discusses this in her Pink Tape blog:

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.

 

Further reading

 

 

When can the court agree adoption is necessary?

And what do we mean by ‘nothing else will do’?

Adoption proceedings are dealt with by the Adoption and Children Act 2002. We agree that adoptions can be ‘forced’ in that the court can make an adoption order without getting the parents’ consent. But we don’t agree that this equates to a deliberate plot to target ‘adoptable’ children to get them into the system.

We believe that parents’  rights to be heard and produce evidence about what they think is the best outcome for their child are real and usually respected in the system. Judges have warned against the dangers of ‘social engineering’ for many years now.

In this post we consider the relevant case law which the court must have in mind when considering making a final care order which has a plan for adoption. The case of Re B-S in 2013 caused a stir amongst lawyers and social workers and was interpreted by some as changing the law by making it more difficult to convince a court to make an adoption order. The President of the Family Division clarified in the case of Re R in 2014 that his judgment in Re B-S had not intended to change the law and did NOT change the law. We discuss these cases in more detail below.

Further reading
  • Read an article here by a family lawyer who is worried about the implications of the 26 week timetable introduced by the Children and Families Act 2014.
  • For another view, see this research from the Ministry of Justice in 2014 which suggests practitioners welcome the new approach to care proceedings.
  • The President of the Family Division has recognised there is a ‘tension’ between what the courts are expecting about the way care and adoption proceedings are dealt with and government proposals relating to adoption. 
  • Read Sir Martin Narey’s guidance about what the law does and does not say about adoption.

 

Remember that Care proceedings are NOT adoption proceedings

The relevance of the 26 week timetable.

The first and very important point to make is that care proceedings are not adoption proceedings.  Before a child can be adopted, the LA must first go through a lengthy and expensive process of obtaining a care order and a placement order otherwise they have no lawful authority to put into action any plans to adopt a child. So if anyone tells you simply that a social worker will take your child and have him adopted, you may not be getting the full picture of just how long and involved this process can be.

In fact the government became so concerned by how long care proceedings were taking that section 14 of the Children and Families Act 2014 now provides that care proceedings must finish as soon as possible or in any event, take no longer than 26 weeks to conclude.

Care Proceedings may go beyond 26 weeks when this is necessary to resolve the proceedings justly. The Children And Families Act further provides at section 14(5).

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

See further para 49 of Re B-S:

where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.

This was approved and re-stated by the President in Re S (A Child) on 16th April 2014.

Justice may not be sacrificed on the altar of speed. See further para 40 of Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam). We have considered this case here.

It will be interesting to see how further court decisions refine this principle in the light of worries over the misinterpretion of Re B-S.

But even if the court does not give permission for care proceedings to exceed 26 weeks, that does not mean that at the end of 26 weeks, the child will be adopted.  A court must made a final care order, then a placement order. This will give the LA the power to look for an adoptive placement and then the prospective adoptive parents will apply for an adoption order. The whole process is likely to take at least a year, if not more.

 

The link between care proceedings and adoption proceedings.

However, we believe it is clear there is a link between care and adoption proceedings; the LA must set out their plans for the children’s future in the care plans to be considered at the final hearing. So if the LA think adoption is the best option, they need to have made that decision before the final hearing so it can be confirmed by their Agency Decision Maker.

However, not everyone agrees with that position; see below for our discussion of the Adoption Leadership Board’s ‘myth busting’ guidance about the law on adoption.

Case law

Lord Templeman in Re KD 1988:

The best person to bring up a 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” 

 Mr Justice Hedley in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

 Baroness Hale in B (Children) [2008] UKHL 35:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.

21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).

 

In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33

See paragraphs 74,76,77,82,104,130,135,145,198,215. Orders contemplating non-consensual adoption are a ‘very extreme thing, a last resort, only to be made where nothing else will do, where no other course is possible in the child’s interests, they are the most extreme option, a last resort – when all else fails, to be made only in exceptional circumstances and motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do.’

 

G (A Child) [2013] EWCA Civ 965

  • The crossing of the s.31 threshold does not of itself engage Art 8, but consideration of the question of what if any order should be made as a result does.
  • There is a presumption that the children’s best interests are served by being with their parents wherever possible.
  • Decisions that involve long term separation of a child from the family, or adoption will require a high degree of justification, be “necessary”, “nothing else will do” especially where intervention is extreme (such as adoption).
  • The task of a trial judge making the ultimate determination of whether to make a care order is more than to exercise a discretion – there is an obligation to determine the application in a way that is compatible with Article 8 – and to apply the yardstick of proportionality.
  • A linear approach to deciding the outcome is not appropriate – this means that it is not appropriate to evaluate and eliminate an individual option, to be left with the alternative (for example, M cannot care for the child, so a care order is the alternative). This approach leads to a bias towards the most draconian option. A global, holistic evaluation of each of the options available must be conducted.
  • A global evaluation requires a balancing exercise in which each option is evaluated to a degree of detail necessary to analyse and weigh the positives and negatives of each option side by side (the risks and positives of returning to M, against the risks and positives of long term foster-care). An express choice should then be made by applying the child’s welfare as a paramount consideration.
  • The court should also contemplate why any conclusion that renders permanent separation is “necessary”, on the basis that it is the “last resort” and “nothing else will do.”
  • The court should also be satisfied that there is no practical way that the Local Authority (or others) can provide the requisite assistance and support required for the child to be able to remain within the family

 

re B-S Children [2013] EWCA Civ 1146

The Court of Appeal considered this clear path of jurisprudence and issued stern warnings about the essential requirement in every case involving issues of non-consensual adoption, of clear analysis about all the realistic options.

The key points of the judgment can be summarised as:

  • Adoption is the ‘last resort’ [para 22]
  • The starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
  • The least interventionist approach is to be preferred [para 23]
  • The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
  • There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option [para 34]
  • The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
  • The court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [para 28]
  • The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]

The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e. rejecting option A, then moving on to option B etc. See para 44 of the judgment.

We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

Rowing back from ‘adoption as the last resort’?

The impact of Re B-S and how it has been interpreted caused serious concern for many. Since Re B-S there have been a number of  Court of Appeal decisions that appear to want to ‘row back’ from the approach that adoption is the only permissible option when ‘nothing else will do’. See for example the case of M (A Child: Long-Term Foster Care) [2014] EWCA Civ 1406.

Suesspiciousminds discusses these cases in his blog post and comments:

We are continuing to refine / retreat from “nothing else will do” and our soundbite test is really ending up to be quite a nuanced and long test, rather more like –

“The Court must look at each of the options for the child, consider which are remote and which are possible, and of the possible options consider whether they are contrary to the interests of the child to pursue them. If there is an option that remains that is a less interventionist order than adoption, that should be preferred.”

In CM v Blackburn with Darwen Borough Council [2014] EWCA 1479 the mother appealed against the making of a placement order as the LA had proposed a time limited search for adoptive parents over six months, after which time, if none were found the plan would revert to long term foster care. The mother complained that this could not pass the test of adoption being ‘the last resort’ if in fact the LA were prepared to consider ‘another resort’ after only six months.  The Court of Appeal dismissed the appeal. At para 33 the court commented:

Neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption. What the decisions do is to explain the existing law, the decision making process that the court must adopt to give effect to Strasbourg jurisprudence and domestic legislation and the evidential requirements of the same. A court making a placement order decision must conduct a five part exercise. It must undertake a welfare analysis of each of the realistic options for the child having regard among any other relevant issues to the matters set out in section 1(4) of the 2002 Act (the ‘welfare checklist’). That involves looking at a balance sheet of benefits and detriments in relation to each option. It must then compare the analysis of each option against the others. It must decide whether an option and if so which option safeguards the child’s welfare throughout her life: that is the court’s welfare evaluation or value judgment that is mandated by section 1(2) of the Act. It will usually be a choice between one or more long term placement options.

That decision then feeds into the statutory test in sections 21(3)(b) and 52 of the 2002 Act, namely whether in the context of what is in the best interests of the child throughout his life the consent of the parent or guardian should be dispensed with. The statutory test as set out above has to be based in the court’s welfare analysis which leads to its value judgment. In considering whether the welfare of the child requires consent to be dispensed with, the court must look at its welfare evaluation and ask itself the question whether that is a proportionate interference in the family life of the child. That is the proportionality evaluation that is an inherent component of the domestic statutory test and a requirement of Strasbourg jurisprudence.

That is what ‘nothing else will do’ means. It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.

For further consideration of what the law actually is in other European countries relating to adoption see the study of Dr Claire Fenton-Glynn, to the European Parliament in June 2015 Every European country permits adoption without a parental consent.

 

The misinterpretation of Re B-S? ‘Myth busting guidance’

Sir Martin Narey has noted with concern that the impact of what he asserts is the ‘misinterpretation’ of Re B-S which has reduced the numbers of children put forward for adoption by LAs by 46%. In an attempt to dispel the ‘myths’  that have arisen about when the court may make an adoption order, the Adoption Leadership Board has published  ‘myth-busting guidance’ after advice from Janet Bazley QC and consulting with the President of the Family Division.

Sir Martin Narey said:

Before commissioning the guidance, I discussed the serious drop in adoptions with Sir James Munby, president of the Family Division of the High Court who made the Re BS judgement, and I have been extremely grateful for his advice. The myth buster has been shared with him, and he supports its aim of dispelling misconceptions about the recent case law on adoption. [EDIT BUT – note the final paragraph of Re R [2014] discussed below, where the President is very clear that this ‘myth busting’ guidance is NOT endorsed by the judiciary.]

The main myths are that:

• The legal test for adoption has changed: It hasn’t.

• To satisfy the Courts all alternative options to adoption must be considered: Not so. The evidence must address all options which are realistically possible.

• Adoption is only appropriate where nothing else will do: ‘Nothing else will do’ does not mean settling for an alternative which will not meet the child’s physical and emotional needs.

• Because it is a ‘last resort’ planning for adoption must wait until other options have been categorically ruled out. Not true. Local Authorities should plan at the earliest possible stage for the alternative of adoption where it seems possible that the child’s reunification with the family or care by other members of the family might not prove to be possible.

• The 26 week rule applies to placement orders. Since April any application for a care order or supervision order must be completed within 26 weeks but placement orders are not subject to the 26 week time limit.

The myth buster is being distributed to staff at all levels and across various disciplines in local authorities, Cafcass and the family justice system.

I urge all those involved in the adoption system to read it and reflect on how they as professionals, and their organisations, can make sure their practice and decision-making accurately reflects the judgments.

Our most vulnerable children deserve nothing less.

A number of commentators have replied to say they don’t accept  that Sir Martin Narey is right to dismissal the relevance of the 26 week timetable; LA final care plans for adoption must be made before the end of the 26 weeks timetable in care proceedings,  so speeding up those proceedings will inevitably impact on adoption proceedings and the type and quality of analysis that goes into the decision that adoption is the right outcome for particular child.

Pink Tape comments:

So. On to my real bugbear. It is disingenuous in my view to send out a message to social workers that nothing has changed, the law is the same (and implicitly you can all stop getting your knickers in a twist and go back to how things were). Because everything has changed. Not the law. Anon QC is right about that. It’s not changed. And Re B and Re B-S don’t actually set out new law, or anything we haven’t been told before. But I think that things have changed pretty radically. And generally for the better.

It is our understanding of the law that has changed – and with it our practice. The authorities that emerged like machine gun fire from the Court of Appeal in the summer and autumn of 2013 were a wake up call, a reminder that sloppy practice and poor analysis are not “good enough”. A reminder that nothing less than our best practice – as lawyers, as social workers or as judges – will do. Yes, rigour is de rigeur.

Because you know what? Before Re B and what flowed from it there was a tendency to give up on parents a little too quickly, to rule them out early on and to autopilot to a plan for adoption as the best opportunity. If we are honest the analysis of this was often poor, the challenge from lawyers and from guardians too was sometimes less robust than it should have been, and the judiciary did not always proactively probe or highlight evidential deficiencies. After all, that’s why the Court of Appeal threw their toys out of the pram in Re B-S in the first place, wasn’t it?

Re R [2014] ‘Re B-S was not intended to change and has not changed the law’

The President of the Family Division confirmed on 16th December 2014 that nothing in Re B-S had been intended to change the law. He stated at para 44 of the judgment:

I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child’s best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child’s welfare should not be compromised by keeping them within their family at all costs.

The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there. I do not resile from anything I said either in In reE (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, or in Re M (A Child) [2014] EWCA Civ 152, but for present purposes they are largely beside the point. The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less….

The law and practice are to be found definitively stated in two cases: the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and the decision of this court in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035….

…The fundamental principle, as explained in Re B, is, and remains, that, where there is opposition from the parent(s), the making of a care order with a plan for adoption, or of a placement order, is permissible only where, in the context of the child’s welfare, “nothing else will do”.

For further comment on this case and how it has been misreported in the media, see Pink Tape. See the statement by the British Association of Adoption and Fosterting. 

 

Rare example of court refusing to make an adoption order.

It seems that the case of A and B v Rotherham Metropolitan Borough Council [2014] may be the first since the 2002 Adoption Act, where the court refused to make an adoption order and removed the child from the home of the potential adoptive parents – where he was settled – to live with his paternal aunt. It is clear that the court must consider the child’s welfare throughout his life – as the Judge commented here, this could mean 80 years or more.

For further discussion of this case, see suesspiciousminds.

The Judge commented at paragraph 95:

This case clearly requires taking both a short term and a long term view. C is currently very well placed with “perfect adopters”. They are a well trained couple with whom he is very well attached. He is of mixed race. They are both white and share with him that half of his ethnicity. A and B are “tried and tested” as has been said. His aunt and the principal members of the paternal family are black and share with him that half of his ethnicity. The aunt is a single person. She has not been “tried and tested” as a carer for C, but she has been observed as a carer of her own child, G, and thoroughly assessed as entirely suitable to care long term for C. There would be likely to be short, and possibly long term harm if he now moves from A and B to the aunt, but that is mitigated by his embedded security and attachments with A and B, and can be further mitigated by specialist training and support for the aunt, which she will gladly accept. The unquantifiable but potentially considerable advantage of a move to the aunt is the bridge to the paternal original family.
It is my firm judgment and view that it is positively better for C not to be adopted but to move to the aunt. In any event, I certainly do not consider that making an adoption order would be better for C than not doing so. Accordingly I must, as I do, determine not to make an adoption order and must dismiss the adoption application. Pursuant to section 24(4) of the Act, I exercise a discretion to revoke the placement order made in respect of the child on 2 August 2013.

The Judge had this to say about the ‘nothing else will do’ test:

With so many Article 8 rights engaged and in competition, it does not seem to me to be helpful or necessary in the present case to add a gloss to section 1 of only making an adoption order if “nothing else will do”… Rather, I should simply make the welfare of the child throughout his life the paramount consideration; consider and have regard to all the relevant matters listed in section 1(4) and any other relevant matters; and make an adoption order if, but only if, doing so “would be better for the child than not doing so”, as section 1(6) requires.

If the balance of factors comes down against making an adoption order, then clearly I should not make one. If they are so evenly balanced that it is not possible to say that making an adoption order would be “better” for him than not doing so, then I should not do so. If, however, the balance does come down clearly in favour of making an adoption order, then, in the circumstances of this case, I should make one. I do not propose to add some additional hurdle or test of “nothing else will do”.

Judges must not pay ‘lip service’ to the necessary analysis

A useful case is In the matter of P (a child) [2016] EWCA Civ 3 where the Judge was criticised for not conducting the necessary analysis required of the ‘realistic’ options. At paragraph 56 the Court of Appeal commented:

While ostensibly aware of the need to adopt a ‘holistic’ approach to the evaluation of the options for P (and the guidance offered by Re B-S (Children) [2013] EWCA Civ 1146, [2014] 1 FLR 1935 at [36] and at [46]), we are not convinced that Judge Ansell delivered on his intentions. It is, as this Court has emphasised in Re B-S and in Re R (A Child) (Adoption: Judicial Approach) [2014] (above)) “essential” that a judge provides an adequately reasoned judgment at the conclusion of a case such as this. We very much regret that after the extensive, perhaps overly discursive, review of the evidence this judgment is light on analysis of at least one of the two realistic options (i.e. adoption) to the degree of detail necessary, nor does the judgment contain a comparison of each option or options (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670 at [54]), or a proportionality evaluation. In this respect, Mr. Horrocks makes good his submission.

There is no specially prescribed form for a judge undertaking the exercise outlined above; the judge is doing little more than performing an ‘old-fashioned welfare balancing exercise’ (Re F [2015] EWCA Civ 882 at [48]); the term ‘holistic’ does not have any special meaning. Neither the parties, nor this Court, will readily conclude that a judge has performed the necessary welfare balancing exercise just because he or she acknowledges the need to do so. The debate about whether the analysis of the realistic options is a ‘balance sheet’ of the pros and cons or an aide memoire of the key welfare factors and how they match up against each other is sterile. What is expected is that the benefits and detriments of each option are considered and there is an evaluation of each option as against the other based on that analysis.

 

Answering birth parents’ questions about adoption

Answering questions about adoption (by an adoptive parent)

A bit of background about me first – I’m a single mum, with three children, all of whom are adopted. Two of my children are now adults; the third is still in primary school. I spend a lot of time online nowadays, and I’ve been really privileged in the last few years to be able to talk with several birth mums about their experiences, and answer some of their questions about adoption and adoptive parents.

I could never truly know what it’s like to lose your child to adoption. But talking to mothers whose children have been adopted, has shown me that it’s often really confusing. They had a huge number of questions about adoption and adoptive parents, and no answers. They didn’t know any adoptive parents themselves, or at least none they felt comfortable asking their questions to.

I think these mothers were incredibly brave to ask me to answer their questions – they didn’t know me, I was just a random adoptive mum. They must have been worried that I would be judgemental or unkind. However it doesn’t matter to me whether someone is an adoptive parent or a birth parent or an adoptee. I hope I can find a way to support everyone who asks me to.

But I strongly feel that these mothers should have had an opportunity somewhere in the process to have all these questions answered, without having to reach out to a stranger on the internet. I am also sure that if these mums I talked to had questions, then there must be a lot more parents/grandparents (and other family) who also have the same questions about adoptive parents and adoption. So I’ve made a list of the questions I’ve been asked the most often by birth parents, and here are my answers. I’ve also included questions I’ve seen online which I haven’t been personally asked.

If you are a mother or father (or grandparent, sibling etc.) whose child (or grandchild, or sibling) is being adopted, then firstly I am sorry you are going through this. I hope you find these answers helpful. If you have any more questions you want to know about adoption that you think I could answer, please comment on this post, and I’ll try my best to answer for you.

And finally, from the bottom of my heart, thank you to the mums who asked me these questions first, who opened my eyes to how the process worked for them and who will remain in my thoughts always, as very courageous people who wanted the best for their children.

………………………………………………………………………………………………….

Why do adoptive parents want to adopt?

Adoptive parents have very different reasons for adopting. Many come to adoption following infertility, but quite a few of us don’t. For me, adoption was my first choice because above all, I wanted to become a mum and love a child with all my heart. I was a single lesbian woman and no other method of becoming a mother felt like the right thing for me to do. I felt that there were so many older children in care that I wasn’t comfortable creating a new life instead of becoming a mum to a child who was already here.

One thing all adoptive parents have in common is that we ALL adopt because we want to experience parenthood, in the same way that people who give birth to their children want to experience parenthood. I’ve seen a couple of people suggest that we want children as “accessories”, but nothing could be further from the truth. I want to reassure families of children in care, that with every adoptive family I’ve ever met, we love our children in exactly the same way as we would love a child born to us, and we would never treat a child any differently because they were adopted.

How does being approved as an adoptive parent work? Is it hard? Do they check up on you thoroughly?

It’s a long process, and it is definitely very thorough. It’s changed now from when I was approved to adopt, but the basics of it are the same. There are several key parts of it. Firstly, there are the basic checks – every adoptive parent will have a criminal records check (certain criminal offences bar you from ever adopting, including any offence against a child) and a medical check to make sure they are well enough to parent a child into adulthood. Social services will also check on prospective parent’s finances, inspect their home and make sure it’s safe for a child, and also get references from family, friends and others. For instance, my employer had to give a reference for me when I adopted the first time.

Secondly, there is a “preparation group”, which all prospective parents will attend at some point during the process. The point of this is to educate, and prospective parents will be taught about the legal process of adoption, why children are available for adoption, about parenting adopted children, and so on.

Thirdly, there are the homestudy visits. This is where a social worker visits the parent/s in their home and talks to them in huge depth about their life and about adoption. For instance, in my homestudies, we talked about my childhood, my family, what support I have around me, my beliefs, my previous relationships (including my sex life), how I would support and parent my adopted child, and about what kind of a child I would be adopting. We basically give social services our life story! A social worker even interviewed one of my ex-partners as part of my assessment.

The social worker who is assessing us will write all this information into a big report. Lastly, the report goes to an Adoption Panel, who review it all, and then recommend whether a parent should be approved to adopt or not.

So it is definitely a thorough process, and whoever adopts your child, will have been checked, questioned and scrutinised as far as possible to make sure they are up to the task.

Do you pay social services to adopt a child?

If we are adopting a child in the UK care system, no we don’t, absolutely not. Not even one pence! You might see people at some point claiming that we pay social services for a child, but this is not true at all. I think some of this confusion is because people see American adoption sites online, and over there, they also have a private adoption system for babies where money is paid by adoptive parents to the adoption agencies. This just doesn’t exist in the UK, so don’t let those sites worry you.

Do you pay any money to anyone else to adopt?

All adoptive parents have to have a (thorough) medical check. Doctor’s surgeries will usually charge for this, in the same way as they might charge for holiday vaccinations or some medical letters.

At the final part of the process, when you apply to the court to legally adopt your child, the court charges a fee. Some adoptive parents have to pay the fee themselves, but sometimes social services pay it for them. I have never paid for the court application for instance; the council have always paid it for me.

There is no other money paid to anyone in the adoption process.

Do you get paid to adopt?

No. Adoption is very different from foster care. Foster carers get paid a weekly allowance to foster. But when you adopt a child, they become your child (legally the same as if you gave birth to them) and so you are entitled to the same as birth parents get for their children (child benefit for instance).

What information do you get given about a child by social services, and what makes you “make your mind up” to adopt that child?

We get a lot of information. The very first thing we see is usually a short profile with just a little bit about the child, and if we are interested, we would get a lot more, in a report which is now called a CPR (Child Permanence Report). The information would include – about the child’s background, their birth family, why the child is in care and being adopted, the child’s personality, interests, behaviours, their health and medical information, their development, if they have any ongoing difficulties or need to be parented a bit differently to other children, about school and friends. It will also say what the plan is for contact after adoption with birth family.

After that, if you are still interested in adopting that child, the child’s social worker reviews your homestudy report and interviews you. Then they (and other members of their adoption team) come to a decision about whether they want to take things further. So it’s not just about you, as a parent, picking out a child. We adoptive parents do not just select a child to adopt like how it was decades ago. Social services have to choose you, based on whether they think you are the best possible parent for this child, and whether you can give this child everything they need.

If social services choose you, you then get even more information. You will meet the foster carer/s, and a medical advisor/paediatrician to get as much information as possible about the child and get all your questions answered. Finally after this, another ‘panel’ approve the match. This whole process of ‘matching’ lasts several months.

Making up your mind that you would like social services to choose you for a certain child, is really different for different people. Some parents ‘just know’ as soon as they read the CPR report, but others don’t and need more time.

When I read my eldest daughter’s information, I felt a strong connection to her, and I felt once I’d read her reports that she was most likely my daughter. I can’t tell you why I felt such a strong connection, it just happened! But we always use the huge amount of information we have to make up our minds as well. We have to be certain we can be the parent this child needs, and that we are comfortable with the child’s behaviour and their needs.

Whoever your child/relatives adoptive parents are, they will have put a huge amount of thought into whether or not to adopt your child/relative, and considered really carefully whether they are the right parents for this child.

Does eye and hair colour come into it?

No! I’ve seen birth parents being told that adoptive parents want children with blonde hair and blue eyes. Actually, we generally couldn’t care less what our child will look like! I’ve certainly never met any adoptive parent who cared whether their child was a blonde, or a brunette, or whatever. We view our children the same as we would a birth child. We wouldn’t care what our birth child looked like, and we don’t care what our adoptive child looks like. We just love them for who they are on the inside.

Personally, I thought it might be helpful for my children, if they looked like I could have given birth to them, because then my children could have privacy – they’d never have nosy strangers thinking ‘ooh, she/he must be adopted!’ based on their appearance. So for me, it was all about the child, and what I thought would be good for my child. It was not about me. As it happens, all my children look quite different, even the two who are birth half siblings!

Do you meet the child before you’ve decided 100% [if you want to adopt them]?

No. Being introduced to the child you are adopting is the very last stage. It’s called “introductions” and it’s where you and the child get to know each other before the child moves in. Before that happens, you’ve had all the information, made up your mind 100%, and been to the panel that’ve approve the match (and of course you’ve bought furniture and decorated etc.!) At this stage, everything is set. Once you’ve read the CPR and been to panel etc., you can’t meet the child and then decide if you want to adopt them. That would be very unfair and wrong for the child. As far as I was concerned, as soon as my children were told about me for the first time (by their foster carers and social worker) then I was absolutely 100% committed to them.

Do you “have” to tell the child that they are adopted? Could it happen that an adoptive family wouldn’t tell the child?

You don’t “have” to tell, because there is no law about it. We have the same freedom as birth parents to tell or not to tell our children about their early lives.

However, it is very rare nowadays for a child not be told they are adopted. Right from day one, we are told how important it is for children to know their story. Social workers and other adoptive parents, we are all very clear to prospective parents about how important it is for children to know about their adoption in an age appropriate way. Parents can access a lot of advice and tips about how best to do this. So whilst it could be that a child wouldn’t be told, it’s very unlikely. I’ve only come across a couple of people in about 18 years who haven’t told their children (and this includes online as well), as opposed to hundreds and hundreds who have.

At what age do you ‘tell’? And how?

Obviously with an older child, they know what’s happening. With a baby or toddler who is too young to understand, the way most adoptive parents try and ‘tell’, is in a way which means the child ‘always knows’. When they are older, they shouldn’t be able to remember a time when they didn’t know they were adopted. This means that for most children adopted as babies, they’ll be having little conversations about adoption by the age of 4 at the latest, but most usually a bit younger than that.

I told my youngest child the story of “the day we met” from when he was 2 years old (and he was 23 months old when we met), and I was also mentioning the word ‘adoption’ from that age. I didn’t bombard him with information; I just dropped in little things here and there. For instance, I remember when at age 3, a neighbour of ours was pregnant, and he pointed at her because she was getting so big. I said that yes, babies grow in the womb which is down in your tummy area, and you grew in X’s womb before you came to live with me. And he repeated that back to me.

All children who are adopted now are supposed to have life story books. These books, which as the name suggests, tell the child’s life story, might help parents to explain to the child the basics.

What are the options for any contact with birth mum? What’s the “norm”?

The norm in my experience is letterbox contact, which means letters going between you and the adoptive parents. This is normally either once or twice a year. It isn’t so common for there to be visits, but if there are, it will most likely be either once or twice a year. I’ve personally done both letters and visits.

For other adult family members, there might also be letterbox or, less commonly, visits.

The plan for contact should be mostly decided on before the child moves into their adoptive home, although it isn’t always. There may be a letterbox agreement which you sign and the adoptive parents sign. This agreement would say when the letters are being sent, to whom, how they are signed, and so on.

As the child gets older, they can have their own say in contact. For instance, my youngest child has asked for all letters to be stopped, so I stopped them. On the other hand, if my child had wanted the opposite and wanted more letters, I would have tried my best to add in another couple of letters a year. For adoptive parents, it’s about supporting our kids and helping them process everything.

What are the options for any contact with siblings? What’s the “norm”?

It definitely depends on where the siblings are living, whether they’ve lived together before and how close their bond is. But in my experience, visits with siblings are much more common than visits with any other members of the child’s birth family, especially if the siblings are also adopted or in long term foster care. I’ve supported my kids through a whole lot of sibling visits over the years. However, if there are no visits, letterbox contact is very often in place for the siblings, usually 1-3 times a year.

Will my child be told that I love them?

I realise how desperately you want your child to know that you love them. Every adoptive parent speaks to their children differently about their past, but most parents, when talking about their (young) child’s birth family, choose to say something along the lines of “your birth mum loves you very much, but can’t look after you”. As our children get older, we add in more about the ‘why’. I certainly have told my children that they are loved, and all the other adoptive parents I’ve met, tell their children the same. I want my children to know that they are loveable people, were the most loveable babies in the world, and that nothing that happened is their fault. I certainly want them to feel loved, and that’s something that all adoptive parents want for their children.

Will my child’s name be changed?

This is something I can’t give an answer to, because every situation is different. I can only say that in nearly all situations, the surname will be changed. Some children have their first names changed, but others don’t. Some of the things that may go into the decision are – whether there is a security risk (whether the child is likely to be recognised), how unusual the name is, its meaning and how old the child is.

I can give you my situation as an example – two of my children were older children when they came to live with me, hence it was entirely up to them what they did with their names. My eldest literally waltzed downstairs one morning and informed me that she was dropping both of her middle names, and had picked two new middle names for herself instead, which were x and y! And that was that, as far as she was concerned. My middle child on the other hand, only ever changed surname, and has kept all her other names as they always have been.

However my youngest child has been entirely named by me (and themselves!). I changed my child’s first name for many reasons, chief among them a security risk from a few people. I kept the old first name as a middle name, because I couldn’t take that away from my child. However, recently my child asked for that (original first) name to go entirely, and to pick a new middle name instead. So I went with my child’s choice, and we picked a new name together, which we are in the process of making legal now.

We are just one family, and every adoptive family will have a different story. So I can’t say whether or not your child will be given a new first or a new middle name. However I can say that if your child’s name is changed, they will at some point be told about it. My youngest always knew which name was originally the first name.

Again, if you have any more questions you want to know about adoptive parents/adoption that you think an adoptive parent could answer, please comment on this post, and I’ll try my best to answer for you.

A child’s perspective – Tammy’s story

Thanks to the TaKen UK website for letting us share this. Obviously, we don’t know all the details of what happened to Tammy’s family  – the fact that care proceedings lasted from 1989 – 1992 suggests that the case was about more than just one accident in the kitchen.

But whatever happened in this case, her perspective on her pain and hurt about what she believes happened  to her and her family emphasises the emotional cost of decisions in the family courts; something we should not lose sight of.

Tammy’s story – told in 2006

“In the best interest of the child” that’s what the professional’s state, but even the professionals and the family courts can be wrong as they were in my case.

Let me explain about my birth family, and myself. I am a young adopted adult; I was taken from my mum nearly 17 years ago on a false allegation, I was seven months old and sitting in my bouncing chair, my mum had gone into the kitchen to make me a night feed. I was happily playing with an activity toy, which I dropped on the floor; I leant forward to reach the toy but the chair followed me arid tipped forward falling on top of me. I sustained a bruise on my cheek. And that’s where my life was changed forever.

My case was heard within the family court in the years 1989 which lasted all the way to 1992. I was placed with a set of foster carers whom I stayed with for 13 months.

Then one-day social services accused the foster carers of suffering from depression and removed me from their care! I was then placed with three lots of emergency foster carers before being placed with my pre adopters, who then became my parents.

While this was happening to me my mum gave birth to my brother Cameron. One minute after his birth social services (a male) walked into the labour suite and tried to hand a place and safety order in writing to my mum who was laid on the bed with no clothes on and she had not even delivered the placenta. Medical staff asked the social worker to leave on three occasions eventually the social worker left the labour suite, leaving my mum very distressed and losing all her dignity.

My mum and Cameron went home to my grandparents where they resided until the 28th of December 1990. My mum then went to the family court as social services were trying for an interim care order to remove my brother from her care. My mum fought and won full parental rights of Cameron and no further action was taken.

All my mum wanted was to fight for me, she attended many family courts, which were held in secret and she was not allowed to talk about our case or me to anyone.

Time passed and Cameron reached the age of 21 months old, when the social services actually reached a date for my freeing order, which was in the year of 1992; there were no concerns to Cameron’s welfare. She was an excellent mother to him.

The judge who heard my case made his decision on the basis that social services had delayed my case for over two and a half years. On reading his decision to my mum (he stated) “Miss Coulter if I return your daughter home to you, you will be a stranger to her” and on that decision I was freed for adoption and my whole future was completely changed.

Finding out that you are adopted is one of the worst feelings in the world because you feel that all your identity you have known of yourself is a lie; for example your whole childhood and personality.

I found out through photos that my brother was still with my mum and is one and a half years younger than me. This was very upsetting and left me wondering why my mum wanted my brother and not me.

Left with these unanswered questions and feeling very confused; like I did not belong anywhere I wanted to find the truth, and the answers to my questions, the only person who could answer them was my mum.

My decision to find my birth family was not supported in the way in which I would have liked from my adoptive parents. I went about looking for my mum by first of all ringing support after adoption that told me I must wait until I am 18 years of age and would not offer me any help or advice. Which left me more confused and very upset?

In January this year on a Thursday night I received a phone call from my best friend. She told me to go over to her house, as it was very important. I had no idea of what I was to be told. Her laptop was placed on her bed and she told me to read the posting. I was ecstatic as I read the information, which confirmed that my mum was looking for me as much as I was looking for her.

My friend who knew as much as I did about my adoption found the posting when secretly putting my name on GENES REUNITED. I found myself emailing her my mobile number as I knew the same information which was written in her posting; which included information that nobody would have known about me.

I waited three and a half hours for the phone call which would change my whole life, and answer all the unanswered questions which had been tormenting me since the age of about 11 when I moved to Comprehensive School where I met many other adopted and fostered children.

Waiting for the phone call was the most exciting and precious time of my life, the hours seemed like weeks. In the next breath I was actually talking to my mum on the phone, we spoke for an hour about everything that we could. We put the phone down and later that evening I rang my mum back and told her I know it was short notice but could we please meet the following morning and she agreed to.

Our meeting was very emotional for the both of us, neither of us spoke we just put our arms around each other and cried together, we held each other very tight and I cant explain how happy I was feeling.

After many secret meetings I decided to tell my adoptive parents about my news, I did not tell them for about two months because I knew what their reaction would be. When I told my mum, as my dad was at work she cried and turned her back on me making me feel very isolated as if I had done something wrong. They never did understand why it was important that I find my birth family nor did they support me at the emotional time. I was keeping in contact via the Internet with my birth family as my mobile phone was confiscated; however they also stopped me from using the Internet to stop any contact, which I was having with my birth family. During this time I was studying for my AS levels which I failed due to all the stress and confusion.

The way my adoptive parents were towards my other life caused a huge conflict in the house making life unbearable at home and at school. I was eventually turned away from my home due to arguments other than my birth parents; this is when I phoned my birth mum, as I had nowhere else to turn. It was too late when I was asked to return to the house I did not want to be treated like a child nor did I want to my feelings to be ignored any longer, so I decided to move in with my birth family.

This brings me to why I am here today, I was a child who was wrongfully removed from the care of my mother and most of all I have had the rights taken away from me to have enjoyed the right to a family life with my natural family.

I would like to say I have had a good upbringing by my adoptive parents and I love them very much, however the complication of my adoption also ruined my relationship with my adoptive parents, as I only wanted to find the truth about my life.

I am publicly speaking today on behalf of children and parents who have also been through the secrecy of family courts and the injustices that have taken place and do still take place and the devastation of what one decision that determines the future of a child can cause to a whole family.

Since I have moved in with my birth family I see the relationship between my mother, brother and sister and cannot help feeling like I have missed out no matter how much I fit in now. We have all bonded very well, I now feel as if I fit in somewhere and feel I can be myself as I have found out who I really am and that my mum never did anything wrong. Over the years Yvonne has been fighting to prove her innocence and that an injustice has taken place. I am very angry and also upset that my mum was treated like a criminal and punished for life on something that she never did, and she had the right to a family life taken away.

Let me explain to you how I am feeling:

• Confused
• Hurt
• Stripped of my identity
• I missed out on a relationship with my brothers and sisters, mum and dad and other close relations
• Exhausted through lies

• I know I am not the only person to have gone through the hell of secrecy in family courts and hope to have expressed the way in which they will feel and are feeling at my age.

Changes that I would like to see happen.

1) For medical evidence used in the courts to not be based on probabilities when determining a child’s future, it must be fact.

2) To stop social services making medical diagnoses when not qualified to do so.

3) For social services when conducting assessments to be thorough and not based on self-opinions but facts.

4) For an independent body who is impartial to social services to be brought in when social services are assessing a family and to check they are following all guide lines of social work.

5) More support for families with whatever reason; a low IQ, a mother whom has depression, a parent that has suffered domestic violence and also a parent whom has a disability. More outside agencies should be involved to help put support packages in place to help families stay together and have the right to a family life.

6) Slow integration of a child back with its natural family should be paramount and decisions to take away the child should be the last resort. For example my mum was told she would be a stranger to me if I were returned home to her however my foster parents and my adoptive parents were also strangers.

7) The most important factor of us all being here today is about the secrecy surrounding the family courts and why they should be opened, you have all listened to my story and many of you would have read similar stories to mine in the media. I am of age where I can talk about the detrimental effects that the secrecy of the family courts has caused to me.

Many of the children who have been taken in the past and are still being taken do not have a voice.

The opening of the family courts would make it a fairer, non judgmental and a more impartial system which would help children that are left in the hands of abuser’s and would also work by stopping children from being wrongfully removed and injustices from taking place.

So please when considering the opening of the family courts take into account that we are all human and we have feelings and the way in which the courts have been working up to this day has been inhumane in many cases and human rights have been exploited.

The detrimental emotional effects and the separation, has on children torn apart from their birth families, lasts a life time.