Author Archives: Sarah Phillimore

Translation of professional jargon and avoiding cliches

This is a work in progress. We would like to continue adding to this list. Please feel free to make your own suggestions or comments about the included phrases and their definitions.

 

Translation of jargon phrases

What Professionals say What parents hear What you should say
‘disguised compliance’ I can’t do anything right Nothing. If you think parents are not genuinely engaging then test their engagement. Continue to assess.
‘attachment’ They don’t think I love my child We are worried about the way your child understands the world around him, and who he can trust to keep him safe. This sometimes happen if parents find it hard to be consistent in the way they look after a child. Here are some things we can do to make things better for you and your child.
‘good enough parenting’ As long as I don’t hit my child, I’m ok No parent can ever be perfect. But every child deserves to have his basic physical and emotional needs met. A lot of the time, that means parents are going to have to put the children’s needs first and above their own particularly while the children are very young and vulnerable.
‘pre-contemplative stage’ ???? It is often difficult to make changes to the way you live your life. Making changes comes in stages – first you have to recognise you have a problem, then you have to do something about it and then you have to keep doing it! If parents haven’t even got to the first stage of recognizing they have a problem, then it is difficult to help them
Significant emotional harm As long as I don’t hit my child, I’m ok Children can get hurt in all sorts of ways, not just by being hit. If they are ignored, shouted at or never praised, this can make it hard for them to grow up feeling good about themselves. Adults who don’t feel good about themselves are often very unhappy and sometimes make bad choices in their lives, which hurt them and everyone around them. Children deserve a chance to be able to grow up into happy adults.
Future risk of harm Social workers think they can gaze into a crystal ball and take my child away for no real reason If something happened in the past then there is a risk it will happen in the future. But no one is a prisoner of their past. You can show that you understand what went wrong before and that you want to change it. But you don’t accept anything did go wrong, and you won’t work to try and change it, then the court will be worried about what is likely to keep on happening in the chld’s future.

 

Words and phrases to avoid

Some words and phrases are not helpful in either establishing or maintaining a relationship between professionals and parents. They are seen as inflammatory and/or cliches .

There is a danger that such phrases are used as a convenient shorthand for a bundle of concerns which may lead to professionals failing to properly analyse what it is about the particular examples that is causing legitimate concern. Also, people find it difficult to engage with or listen to someone who appears to be talking in cliches.

For example: avoid saying ‘Parent X is lacking insight into his problems with substance abuse’. Instead say: Parent X has been using drugs for a long time and has not got any help to stop, even though I have asked him to and given him the address for where he needs to go to get help. Therefore i am worried Parent X just doesn’t understand that he has a serious problem with drug use and I don’t think he can safely look after his children unless he deals with this’.

It is always better to speak plainly and provide examples of actions or failure to act so that everyone is clear exactly what the problem is and what, if anything can be done about it.

Examples of words and phrases that are becoming unhelpful cliches/are not easily understood

I can see an immediate distinction here between legal ‘terms of art’, such as ‘recusal’ and phrases which risk slipping into unhelpful cliche, such as ‘lack of insight’.

Please add in the comments any words/phrases you think should be on this list. 

  • collusion
  • core assessment
  • CP Conference
  • domestic violence
  • emotional attunement
  • failure to engage
  • guardian ad litem
  • holistic needs
  • lack of insight
  • minutes of meeting
  • orange book assessment [I have no idea what this is!]
  • personality traits
  • professionals meeting
  • recusal
  • redacted
  • social work assessment

 

 

The woeful state of our debate about child protection, Part II: Hemming and the Latvian case

John Hemmings address to the Press Conference in Riga, Latvia.

On 31st August John Hemming uploaded onto YouTube a video.

I mentioned this on Twitter and expressed the hope the Latvian authorities are getting information from sources other than this. John Hemming has asked me to explain why I am concerned with what he says in his video.

What’s my problem? Summary

What’s wrong with this video? In general, to conduct the debate about the child protection system in this way, using inflammatory language, offering assertions as fact, displaying confirmation bias throughout and simply ignoring anything which might not support your argument simply underlines for me the very sad fact that the state of debate about our child protection system is woeful. It is embarrassing that we cannot do better.

It is all the more tragic because John Hemming does make some good points. He is right to point out that until recently LA were NOT aware of their obligations to inform other States that their citizens were facing care proceedings and the removal of their children. But that has been addressed and dealt with.  John Hemming should get credit for making a fuss about that, because it is important.

However, whatever good he has managed to do has, in my opinion, over many years been sadly submerged under a pile of ill informed and inflammatory assertions.  This does not promote debate or aid greater understanding or help children. Rather it drives proper debate further underground and the children are left to suffer in a system which is arguably not fit for purpose. 

If he is going to set himself up as an expert advising the Latvian authorities, I hope he will take the time to explain further to them his role as a ‘champion’ against the child protection system, and in particular his links with Ian Josephs and the ‘mums on the run’ network. 

I think the Latvian authorities ought to be fully informed about the background and activities of someone who proposing to ‘assist’ them in actions against another State. It is then a matter for the Latvian authorities whether they think they will be helped or hindered. For my part, I would urge them to act with extreme caution before accepting uncritically John Hemming’s views of the child protection system.

Particular problems.

It’s about a 5 minute video. This is what he says just 31 seconds in:

The Government sets targets to destroy families.

Why frame your argument in this way, right at the outset? Is this kind of inflammatory language remotely helpful in promoting debate and understanding between two States? Is this really what he thinks is the purpose of the child protection system in England? If that is what he really thinks, does he accept that he is going to need to provide some pretty clear evidence in support of such an astonishing allegation?

At 36 sections he says that the LAs act ‘wherever possible to remove children from their families’ Again, an inflammatory statement which is not a reflection certainly of the current law that makes it crystal clear that adoption is the option of last resort.

He references a recent case which I won’t identify here as it seems that the whole purpose of this video is to encourage the Latvian authorities to put pressure on the Supreme Court to consider an appeal in this case. An interesting way to mount a legal challenge, using ‘interesting’ in the sense of ‘utterly inappropriate’.

He makes particular assertions about the state of the evidence in this case, claiming that the only real independent evidence was a core assessment, which was ignored because the SW Managers put pressure on to get another child to meet their adoption targets. It will be interesting to see what the Supreme Court make of this assertion.

He refers to statistics which show that ‘obviously’ a LA was biased because they have targets to increase adoptions ‘year on year’. Is he going to discuss with the Latvian authorities the efforts made by the Transparency Project to unpick and analyse his statistics? It clearly is not as obvious as he would wish to maintain that the Merton KPIs are irrefutable proof of a Government set target to ‘destroy families’.

I don’t disagree that the current ‘push’ for adoption is concerning – and I note this particular blog post with serious concern – but after years of searching, I haven’t been able to find clear or indeed any proof that the Government is setting out to ‘destroy families’. There are obviously problems in the system which we need to deal with urgently – but deliberate, malign targets of destruction are not one of those problems. See the ‘Forced Adoption’ post for further discussion.

The more time we waste posturing about issues which don’t exist then the less time we have to deal with the problems that clearly do. What does John Hemming have to say for example about the clear and stark regional differences about rates of children taken into care? The Merton rates are tiny; about 12 children a year are adopted or subject to a SGO. You are much more likely to be taken into care if you are a child in Blackpool. Why is this? Why isn’t John Hemming interested in this?

Could it be, a cynical voice inside me utters, that it is just more ‘exciting’ to set oneself up as an advisor to the Latvian government and enjoy the accolades that attach to such campaigning, rather than actually care about and do something about the depressing and mundane realities of inequality in our society? Not as much press interest in the latter I suspect.

The debate at the Transparency Project is here. John Hemming has been asked a number of questions about his statistics which at the time of writing he has failed to answer. I am particularly interested in his assertion that he has statistics from 1995 which will prove that there are ever increasing numbers of young children being taken into care and subsequently adopted. I would like to see this evidence.

 

Conclusion

As Claire Fenton Glynn commented on Twitter about John Hemming’s video.

Claire Fenton-Glynn ‏@CFentonGlynn
@SVPhillimore A number of fundamental errors of reasoning. There are definitely flaws in English system but this clouds productive debate.

Please. We simply have to do better. We are educated adults. We are surely capable of a debate that reflects all the nuance and complexity of the current problems we face.

I have to believe that but at the moment I am seeing precious little to reassure me from any source.

‘Disguised compliance’ as example of Jargon and Cliche – the chilling effects on working relationships

“… they are basically stripping us of any rights we have, freedom of speech, our private life, freedom of choice, taking away our descion making and how the sw precieves this Is exactly how it is there is no other version of things in their eyes their’s is the only view that’s right and if your don’t conform to it then you are being disguise compliance well it really is a case of do as I say or reap the consequences…”

This post arises out of a discussion on Facebook. The phrase ‘disguised compliance’ appears to be used more frequently in care proceedings recently. What does it mean? What do parents think it means? Is this just another example of the potentially very damaging impact of jargon upon effective communication and good working relationships?

You may also be interested to see our post where we attempt to translate some of the more commonly used profession jargon.

What is ‘disguised compliance?’

The NSPCC provide this definition:

‘Disguised compliance’ involves a parent or carer giving the appearance of co-operating with child welfare agencies to avoid raising suspicions, to allay professional concerns and ultimately to diffuse professional intervention.

The term is attributed to Peter Reder, Sylvia Duncan and Moira Gray who outlined this type of behaviour in their book Beyond blame: child abuse tragedies revisited :

“Sometimes, during cycles of intermittent closure, a professional worker would decide to adopt a more controlling stance. However, this was defused by apparent co-operation from the family. We have called this disguised compliance because its effect was to neutralise the professional’s authority and return the relationship to closure and the previous status quo.” (Reder et al, 1993, pp 106-7).1

Examples of disguised compliance would be a sudden increase in school attendance, attending a run of appointments, engaging with professionals such as health workers for a limited period of time, or cleaning the house before a visit from a professional.

Impact of use of jargon in working relationships between parents and professionals.

‘Jargon’ is defined in this way by Tony Proscio

The technical definition of jargon, the strictest, is language that is so technical that a person outside the field, the layperson so to speak, wouldn’t understand it, but that’s not the way most people that I work with think about jargon and it’s not generally the way I use the word either. For me, the definition of jargon is language that stops the reader instead of encouraging the reader to keep going, reader or listener. It’s language that either is grating or hard to figure out or seemingly wrong in some way that makes the reader or the listener stop and, instead of paying attention to your point, pay attention to your language.

Kate Wells has written about the importance of using language to communicate between social worker and parent. There is clearly a danger that the use of jargon seriously impedes communication. It may reassure the professional as a badge of their intelligence or learning – but it alienates, frustrates and confuses the lay person.

Mark Neary wrote about the use of jargon he encountered in the adult care system for his autistic son, and how this use of language meant his son’s life was further defined as ‘not normal’. For example where Mark Neary simply had ‘friends’ his son had a ‘circle of support and influence’. The alienating impact of this kind of language is clear.

But ‘disguised compliance’ is not simply jargon, it is also a cliche. It appears to be used increasingly frequently in assessments of parents.  The negative impact of cliches is described in this way by Tony Poscio, in answer to the question why cliches are so irritating:

It’s partly the effect of just hearing anything over and over and over again. After a while you just get first bored and then irritated. Hearing the same word used repeatedly gives the subtle, maybe subliminal, impression that the person speaking or writing doesn’t have much of a vocabulary. That is it actually undermines the impression that the writer is trying to give of intelligence or mastery of the subject and instead replaces it with the only word this person knows. We don’t necessarily know we’re doing it. In fact, I may be doing it in this call and you’ll probably get ten emails later saying the jerk was doing exactly what he was criticizing and that maybe because it is a human tendency when you find a word that works, that describes what you want it to describe, you tend to use it over and over again, but it’s a harmful tactic for communication because the effect on the reader is just grating.

The further danger of use of the term ‘disguised compliance’ is the frustration it causes in parents who cannot see what they can do to show professionals that they are taking concerns on board. If the parents refuse to co-operate they are viewed with suspicion; but co-operating doesn’t help either as this will be reduced to ‘disguised compliance’.

The use of jargon and cliche is particularly infuriating for parents when it is seen as an attempt to mask hypocrisy or lazy thinking. For example, a typical complaint from many parents, is if they are late for contact with their children, this will be written up as evidence of their lack of consideration for their children or their inability to plan their lives. Social workers who are late for appointments however will blame traffic jams.

Views of a parent

I’m speechless I’ve spent a couple of hours reading about disguise compliance and my honest view everyone on here is disguise compliance because we are taking a stand. Some of the advice on community care for social workers is don’t ever believe a parent, anyone that makes a complaint has issues with authorities, a parent may have a good relationship with one professional they clearly got motives to hide abuse …  if u don’t agree to the appointment they want to have with you because u made plans three weeks ago to meet up with a friend who you haven’t seen for a long time and they ring up the day before or sometimes hours before because you say you can’t your busy but any other day is fine you are avoiding in their eyes.
If they turn up early or late for appointment and you have not quite made it home or you have waited in hours for them.and you had to go out again you are hiding something if you refuse to consent to given the access to your medical records you are hiding something, well no you keeps saying the concerns are with my child why do u need to know my personal medical history it’s not going to show if the child is ill is it, they are basically stripping us of any rights we have, freedom of speech, our private life, freedom of choice, taking away our descion making and how the sw precieves this Is exactly how it is there is no other version of things in their eyes their’s is the only view that’s right and if your don’t conform to it then you are being disguise compliance well it really is a case of do as I say or reap the consequences…

Conclusions

There are strong temptations to slip into ‘industry speak’ – as a sign of your belonging, as effective shorthand when communicating with other professionals, etc. But we have to be aware of the impact of our language. Not only can it serve as a barrier to communication but it can have a detrimental impact on our ability to think about what we are really saying and what we really mean.

It was recognised and discussed at the Child Protection Conference in June 2015 that there was work to be done on simplifying and humanising the language used by professionals. Delegates were asked to give their definitions of commonly used phrases in care proceedings such as ‘pre-contemplative stage’ or ‘attachment’. Even when people were confident that the meaning of the word was ‘clear’ there were a great many variations on the definitions they gave; the words and phrases did not mean the same things to the same people.

Tony Proscio was asked if people got better results when they’re more direct, when they use simple language and avoid phrases like “engagement” or “advocacy,” . He answered:

… If the objective is to inspire people or to sort of prod them to action, the sounds and the words they hear ought to strike them as coming from friends and allies, not from a disgruntled professor. The whole point of inspiring people to do things is that you reach them at a level that’s both emotional and intellectual. The emotions are stirred by emotional speech and the intellect is stirred by originality. Neither of those things is going to come from a lot of cliché, jargon, abstractions, and technicalities.

Further reading

Adoption Statistics

Discussion about what the statistics do or don’t tell us about the rise (or fall!) in adoption rates has grown considerably throughout 2015. Therefore we have removed this discussion from the Forced Adoption post to consider it separately here.

Those who campaign against ‘forced adoption’ maintain that the initial ‘targets’ to get children out of foster care and into permanent families has lead to a ‘trickle down’ effect so that SW target cute ‘adoptable’ children and initiate care proceedings to get them into the system and thus improve their ‘adoption hit rate’. If this is true, can we find any support for it in the data which is published about applications for various orders and the orders that are eventually made? 

 

Lies Damned Lies and Statistics – what do the figures say about adoption rates?

On 30th September 2014 the government issued a press release applauding the rise in adoption numbers. Nicky Morgan, Secretary of State for Education said:

Today’s figures show a significant and sustained rise in the number of adoptions – an increase of 26% in the last 12 months. This means thousands more of our most vulnerable children are finding the loving and permanent homes they so desperately need.

We also promised to remove delay and frustration from the process for both children and adopters. Today’s figures show that we are delivering on that promise. The system is working more quickly, as well as providing more support to families after an adoption has taken place.

However, In November 2014 Sir Martin Narey raised concerns that since February 2014 LA decisions to pursue adoptions are down by 46% and number of placement orders granted by the courts has halved.

His concerns were so great that the National Adoption Leadership Board issued ‘myth busting’ guidance about what the court does or does not say about when adoption is necessary.

For further discussion see Pink Tape’s ‘Take me to your Leadership Board’.  We look at this issue in more detail in the post ‘When can the courts consider adoption is necessary?‘

It is clear that the Government remain committed to increasing the numbers of children in care being adopted and refer to the recent authorities as ‘set backs’. See this answer from the Prime Minister at Parliamentary Questions in 2015:

Hansard from Wed ( October 14th 2015 ) : Q4. [901524] Kit Malthouse (North West Hampshire) (Con): The Prime Minister recently spoke movingly and shockingly about the life of despair that still lies ahead for too many of our looked-after children.
Notwithstanding the vital work that has been done in recent years, will he expand on the reforms that he proposes for these, our most vulnerable citizens?

The Prime Minister: I am grateful to my hon. Friend, who knows a lot about this from the work he did in London when working for the Mayor.
I think that there are two areas we need to look at most of all. First, we need to speed up adoption processes. We should be reducing the number of children in care by ensuring that they can find loving family homes. We have made some progress, but frankly we have had set-backs, not least because of some of the judgments in our courts, so we need to get the level of adoption back up again. Secondly, we need to take some of the knowledge from our education reforms and use it to reform social services.

The rise and fall of adoption rates.

So there was no doubt that adoption rates were rising. But they are probably going to fall again given that decisions by LAs to pursue adoption have fallen by nearly half.

See further the excellent article by suesspiciousminds about newspaper reports in May 2015 concerning the ‘freefall’ in adoption rates after the ‘chilling effects’ of various cases. 

So have the anti forced adoption campaigners had an impact? Are they responsible for this fall by unmasking the truth behind ‘adoption targets’?

We believe the short answer to that question is ‘no’.  To consider this in more detail,  we need to look at the reasons behind the previous rise in the number of adoptions. There are a number of possible explanations:

  • First; that the governments plans to speed up adoption rates for the children already in care were working well; OR
  • LAs were generally under pressure to avoid another Baby P scandal and were pushing for adoption in cases where before a child might have returned home; OR
  • LAs were suffering the consequences of difficulties in recruitment and retention of social workers so cases were not being assessed as carefully as they should be; OR
  • LAs were deliberately targeting younger, more ‘adoptable’ children and social workers would lie to ensure the children’s removal from loving and blameless parents.

 

Can the statistics help us decide what’s been going on?

The danger with statistics is that often they can be used to prove any kind of argument you want. Some opponents of the system have at times offered quite contradictory views about what is going on – see this report from the Daily Mail in 2011 which asserted that adoption rates were falling because adoptive parents were afraid of being called paedophiles.

The blogger Second Daddy comments:

If you want to learn about Forced Adoption then look into it yourself, make your own mind up. If you want to see the raw figures for adoption in 2010, the year quoted by John Hemmings MP in the above Wikipedia article, it’s here. You’ll see that there were 4550 adoptions in England & Wales that year; John Hemmings stated that there were 1360 “Forced” adoptions that year, 29.89% of the total. 1000 of these he claims were “wrong”, 21.89% of the total, 73.53% of the “forced” adoptions. So a third of Adoptions are “forced”. That’s a fairly big number, and it is something we’re aware of and it is a concern, but. But. It’s a guess. With the greatest of respect, Mr Hemming has no idea how many of these were “wrong”. He pulled that figure out of his ass, he has no proof, just a hunch.

However, if it is true that local authorities are or have been targeting younger and hence more easily adoptable children to improve their adoption rates, we should expect to see that reflected in the statistics and we should be able to see a clear rise since 2000 of babies being taken into care and subsequently adopted.

 

We have found the following statistics.

Children in Care and Adoption

In 1976 4,000 babies were adopted. In 2011, 60 (according to the Daily Mail).

Research from Karen Broadhurst (see below) shows a significant and worrying increase in the numbers of newborns who end up subjected to final care and placement orders.

The article ‘Adoption Targets Row; the Sector Responds’ from 2007 in Community Care gives the following figures:

  • 2,490 under-fives in care were adopted in 2006, up from 1,010 in 1995.
  • 4,160 under-fives were first taken into care in 2006, up from 2,870 in 1995.
  • 1,300 babies aged younger than a month when they were taken into care were adopted in 2006, up from 540 in 1995.
  • The average age at adoption in 2006 was four years and one month.
  • 3,700 children were adopted from care in 2006, up from 2,700 in 2000.

So we can see there has been an increase in children being taken into care and being adopted over time from a low starting point, but that the average age for adoption in 2006 was over 4 years old. So 4 years after Hemming argues that babies are being targeted, this does not appear  to be reflected in the average age on adoption.

Compare this with statistics from 2013 

6% (4,310) of children looked after on 31st March 2013 were under 1 year old
18% (12,360) were aged between 1 and 4 years old
19% (13,260) were aged between 5 and 9 years old
36% (24,450) were aged between 10 and 15 years old
20% (13,730) were aged 16 and over

The average age at adoption in the year ending 31st March 2013 was 3 years 8 months

2% (90) of children adopted during the year ending 31st March 2013 were under 1 year old
74% (2,960) were aged between 1 and 4 years old
21% (850) were aged between 5 and 9 years old
2% (70) were aged between 10 and 15 years old
<1% (10) were aged 16 and over

So we see that only 6% of looked after children in March 2013 were under one year old.  Only 90  (2%) were under 1 year old when they were adopted. There is a small decrease from the average age at adoption in 2006 of 4 years 1 month, to 3 years 8 months in 2013 – six years later.

However, in 2013, 13 years after LAs were supposed to be targeting babies, across the country, they have only managed to get 90 babies adopted and the average age at adoption is nearly 4 years old.

On these figures, if there is a deliberate conspiracy to target and remove babies and young children, then the LAs are doing a pretty poor job.

In 2013 there were still 3 times as many children needing adoption as there were adoptive placements. This also points against any argument that care proceedings are targeting the ‘adoptable’ children – otherwise why are there so many children in care who can’t find adoptive families?

See further the article in Community Care;  ‘An ideological approach to adoption figures means we are missing important trends’.

Removal of new born babies

However, research by Karen Broadhurst at the University of Lancaster, in December 2015 has shown a significant increase in care proceedings involving removal of new born babies from mothers who have been involved in repeat care proceedings and have lost many proves children. She found a ‘disproportionate increase’ : from 802 in 2008 to 2,018 in 2013.

The research can be downloaded here.

The Nuffield Family Justice Observatory reported in October 2018 ‘Born into Care, Newborns in Care Proceedings in England’. You can read a summary of the report which links to the full report here.  In brief, the research showed that numbers of newborns being removed were on the rise (defined as babies under 7 days). In the decade covered by the study, 173,002 children were involved in care proceedings and 47,172 (27%) were infants. At the outset, 32% of care proceedings were for newborns – by the end that had increased to 42%. Newborn cases also increased in volume over time; at the outset 1,039 cases were issued involving newborns; at the end 2,447. Thus the likelihood of newborns in the general population become subject to care proceedings has more than doubled.

The total percentage of newborns subject to final care and placement orders was 47%. 21% were placed with extended family. 13% were placed with birth family. This requires further investigation – we need to know more about the circumstances behind those percentages.

Thus does show a significant increase from 90 babies being adopted in 2013 and we need to know more about why this is happening. It does seem to support an assertion that babies are being ‘targeted’ as easier to adopt.

 

What happens in care proceedings?

See these statistics from the second quarter of 2015. 

John Hemmings and others often asserts that almost all care proceedings result in care orders (and thus parents should leave the jurisdiction rather than engage with care proceedings).

Figure 3 shows the proportion of children subject to which final orders at the end of care proceedings. This does not support the assertion that ‘99%’ of applications for a care order end up with the child being removed from the parents or the wider family.

  • Care Order 30%
  • Supervision Order 18%
  • Residence 12%
  • Special Guardianship 14%
  • ‘Others’  11%

 

ITV Exposure Documentary

On 15th July 2014 barrister Martha Cover stated on the ITV documentary Exposure – Don’t take my child  that orders ‘permitting adoption’ had risen by 95% in the past three years.  This seemed high to us so we are very grateful to Andrew Pack for doing some digging and commenting:

Placement Order applications since 2011, and Placement Orders made by the Court since 2011.  These taken from the Court stats spreadsheets.

  • In 2011 – applications made 5821, orders made 5109.
  • In 2013 – applications made 7178, orders made 6082.

That’s about a 20% increase. Annoyingly, I don’t have the stats for 2010, which is presumably when Martha is calculating from, but I’d be REALLY surprised if it was as high as claimed. For that to be right, the applications in 2010 would need to have been around 3500… Interestingly, you can see a downturn on both in the last 6 months (i.e. since the Re B-S stuff was really percolating through) – and it is almost 50% down in the first quarter of this year from the high point.

I reckon the error here is in taking the numbers of children each year who are subject to Placement Orders, which is going up at a significant rate, as demand for placements outstrips supply and we add to the numbers each year with new cases, but also don’t clear the decks of the children the year before who needed placements.

A 20% increase in something as drastic as placement orders is still reason for concern, but it isn’t 95%, not by a long chalk.

Follow the money

You may be interested in these articles by Andrew Pack for more detailed consideration of whether it is possible that there  is a financial motive or incentive driving care proceedings.

He comments:

What I would say, for the ultra-cautious people, is that I would agree that the lack of transparency on ‘payments and adoption targets’ is deeply unhelpful and creates a genuine reason for people to feel sceptical, uncomfortable and unhappy. The absence of clarity and transparency is itself very shabby. It may or may not have distorted how many times adoption was recommended in final social work evidence, it may or may not have had an impact on individual people’s cases. At this point, we don’t have the evidence to draw a proper conclusion and that in itself is wrong. It creates at best, a fishy odour, and as we well know, “Justice must not only be done, it must be seen to be done”

The impact of the continuing ‘push’ for adoption

it will be interesting to see what impact the continuing ‘push for adoption’ has on statistics in the coming years. The PM made this comment in October 2015:

Hansard from Wed ( October 14th 2015 ) : Q4. [901524]

Kit Malthouse (North West Hampshire) (Con): The Prime Minister recently spoke movingly and shockingly about the life of despair that still lies ahead for too many of our looked-after children. Notwithstanding the vital work that has been done in recent years, will he expand on the reforms that he proposes for these, our most vulnerable citizens?

The Prime Minister: I am grateful to my hon. Friend, who knows a lot about this from the work he did in London when working for the Mayor.I think that there are two areas we need to look at most of all. First, we need to speed up adoption processes. We should be reducing the number of children in care by ensuring that they can find loving family homes. We have made some progress, but frankly we have had set-backs, not least because of some of the judgments in our courts, so we need to get the level of adoption back up again. Secondly, we need to take some of the knowledge from our education reforms and use it to reform social services.For example, we need to see the best graduates going into social work.

Adoption Leadership Board reports December 2017

The summary noted that the trend in making adoption orders was upwards until a dip in 2013 following the Re B-S decision. But now about 4,000 placement orders are made each year, which suggests that the use of adoption is comparatively higher now when compared with last two decade.

 

Further reading about statistical trends

Forced Adoption

I am a passionate believer in the value of adoption in appropriate circumstances… But I fear that, in making all those orders, I never gave much attention to the emotional repercussions of them. In particular I fear that I failed fully to appreciate that an adoption order is not just a necessary arrangement for the upbringing of some children… the order is an act of surgery which cuts deep into the hearts and minds of at least four people and will effect them, to a greater or lesser extent, every day of their lives…

Lord Wilson Denning Society Lecture 13th November 2014

‘Forced adoption’  is a phrase we often hear used by people like Ian Josephs  and the former MP John Hemming  We have provided links to their sites under their names – but we hope that if you visit their sites, you will also stay here and read what we have to say.

See this post for discussion of the case law which judges have to consider before agreeing to any care plan for adoption. See this post for general discussion of the law around adoption and placement orders. 

 

The debate begins

Adoption, the means by which a child’s legal relationship with his birth parents is eliminated, did not become law in England and Wales until the Adoption Act 1926; some time after the USA, Australia and Canada. Many babies born out of marriage in the Victorian era were ‘farmed out’ or placed with married couples who would pretend the baby was their own.  There were increasing concerns about the lack of regulation of this private adoption industry which led to statutory intervention. Under the Local Government Act 1929, local authorities (LA) were given powers to remove children from parents, if the LA decided they could not care for them.

See this post from the Guardian giving a time line of the history of child protection. 

In 1968, 25,000 adoption orders were made, reflecting a society where illegitimacy was still stigmatised, birth control less reliable and welfare benefits less accessible.  In 2014 only about 5000 adoption orders were made. Adoptions now rarely involve babies.

The often highly polarised debate about ‘forced adoption’ and what this means for child protection work, gained increased traction around 2007 and became the focus of renewed attention towards the end of 2013. This followed discussion of Alessandra Pacchieri  (the ‘forced caesarean case’ ) and media interest in reports of parents wrongly suspected of abusing their children who were actually suffering from various medical conditions.

You can read comment on Ms Pacchieri’s case and the judgment here. The court made an adoption order in relation to her child in April 2014. The case is here. For an explanation of what sparked John Hemming’s interest in the child protection system, see ‘Hemming’s Way’ the article by Jonathan Gornall in 2007.

However, despite the enormous reduction in adoption orders over 40 years, the debate about the entire concept of adoption continues to grow. There have been serious concerns about the child protection system for many years. Those unhappy with the UK’s approach to ‘forced adoption’  raised their concerns in November 2014 with the European Parliament’s Petition Committee.

In fact, it was this 2013 ‘forced adoption’ debate that encouraged us to set up this resource as we were concerned that a lot of justifiable criticism about the system was getting lost or taken over by those who wanted to believe the more extreme ‘conspiracy theories’  – i.e. that the entire system was corrupt and that social workers are paid bonuses to snatch babies from loving homes.

For a sad example of the damage that can be done to a parent’s chances of keeping their family together, by  a ‘siege mentality’ and belief that concerns about their parenting are fuelled by a conspiracy, see Hertfordshire County Council v F & Others [2014] EWHC 2159.

We have attempted to debunk some of the more specific myths here and in particular the frequently made assertion that adoption targets exist to take babies away, rather than to promote finding adoptive families for children who have already been through care proceedings and don’t have a permanent home.

 

The Conspiracy Theory: Allegations of Systemic Corruption

People who are unhappy with the current child protection system often refer to it as a system of ‘forced adoption’ which is almost unique in Europe.

However, this assertion is not supported by the 2015 Report by the Committee on Social Affairs, Health and Sustainable Development from the Council of Europe which notes that adoptions without parental consent are possible in Andorra, Croatia, Estonia, Georgia, Germany, Hungary, Italy, Montenegro, Norway, Poland, Slovenia, Sweden and Turkey.  A further 7 countries permit adoption without parental consent in ‘rare’ circumstances. See further, this post from the Transparency Project. See also this post from Claire Fenton-Glynn confirming that EVERY European country has a mechanism to provide for adoption without parental consent. 

They say that children are taken from parents for no good reason in order to meet LA’s ‘adoption targets’ set by various Governments and this is shown by the increased numbers of children being taken into care.

It is further alleged that family courts are secret and people who try to speak out will be sent to prison. Parents aren’t allowed to see the evidence against them and lawyers, experts and Judges are all in each other’s pockets and just rubber stamp the decisions made by the LA and social workers.

There are many on line groups for parents who are convinced that their children were removed on the basis of deliberate lies. The view expressed here is typical:

UK Social Services/CAFCASS are the most prolific and serious perpetrators of Domestic Violence in the country. UK Family Law Courts a close second. One day, history lessons will describe the horrific details of what is happening to families all across the country. The descendants of those who have perpetrated this abuse, will be ashamed of their ancestors and try to distance themselves from them….

Worries about social work practice come from a variety of sources. Colin Brewer wrote in the Spectator in the aftermath of the Rotherham child sex abuse scandal:

The Rotherham report suggests, as June and I suggested 34 years ago, that social workers excel at empathy but lack the ability to carry out ‘coherently planned action’. Social work with troubled teenagers is doubtless even more challenging today than it was in the 1980s, yet the report’s conclusions reveal many of the unhelpful institutional and ideological features that we identified are still with us…

It seems these were not just individual failures, occasional and regrettable exceptions in a generally efficient professional culture, but a persistent feature of a profession that emphasises doing good rather than doing it efficiently. This happens despite the fact that social workers have relatively modest case loads, especially compared with doctors.

These are not fanciful concerns. We should all be interested in the state of our child protection services. However, while we accept that sadly there have been serious examples of injustice we don’t accept that this is a result of deliberate corruption within the system itself, or chasing after ‘adoption targets’.

What is clear is that a growing number of people DO believe exactly that. We need to understand why and what we can do about it.

 

Adoption Targets: How did this belief take hold?

In 2000, the government introduced a national target to increase the number of children adopted from care by at least 40% between 1999-2000 and 2004-5. Tony Blair had been horrified by the numbers of children who remained in care for long periods of time without a permanent home.

Therefore, these were not targets to take children from their homes in order to get them adopted but a well intentioned attempt to help children who were already in the care system and hadn’t been found a permanent home.

Claire Fenton-Glynn describes the situation in her study on the UK system, presented to the European Parliament in June 2015:

The Prime Minister’s Review of Adoption in 2000 put forward the belief that the system was not delivering the best for children, as decisions about how to provide a secure, stable and permanent family were not addressed early enough. As such, it advocated an increase in the use of adoption to provide children with permanency at an earlier stage. The Review gave the opinion that there was too great a focus on rehabilitation with the birth family, at the expense of the child’s welfare. It emphasised that the first choice should always be a return to the birth family, but where this was clearly not an option, adoption should be seen as a key means of providing permanence. Foster care, on the other hand, was viewed as a transitional measure, which should be used only as a temporary option.

Following on from this, the government produced a White Paper entitled Adoption: A New Approach, which outlined the government’s plan to promote the wider use of adoption for looked after children, establishing the target of increasing adoption by 40-50 per cent by 2004-2005.39 The White Paper also announced that the government would require local authorities to make a plan for permanence – returning home, placement for adoption, or special guardianship40 – for a child within 6 months of being continuously looked after.

It was in this context that the Adoption and Children Act 2002 was introduced, with the explicit aim of promoting the greater use of adoption. The Act changed the process of adoption itself, by making the welfare of the child the paramount consideration for courts and adoption agencies in all decisions relating to adoption, including in deciding whether to dispense with the birth parents’ consent to adoption.

The Government’s official position about targets to get children taken into care is clear: they don’t exist. Matthew Dalby of  the Ministerial and Public Communications Division of the Department of Education said in October 2014, in response to an email from a parent:

I must explain that there are no targets on the numbers of children in care. In fact the law is clear in that children should live with their parents wherever possible and that families should be given extra support to help keep them together. In most cases, support from the local authority (LA) enables concerns to be addressed and children to remain with their families.

The Transparency Project responded in September 2015 to John Hemming’s assertion that the London Borough of Merton has ‘targets’ to take children from their birth families. There are certainly concerns that ‘key performance indicators’ promoting adoption could risk impacting on the integrity of decision making for individual children; the Transparency Project is investigating further and has made a number of FOI requests to other local authorities; watch this space.

Judicial response to allegations of systemic corruption

John Hemming raised very specific allegations about the corruption in the family courts in the case of RP v Nottingham [2008] which were rejected by Wall LJ as being without evidence:

97. It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was “the local authority’s expert”. For good measure, he asserts that the system is “evil” and that “there does seem to be little concern in the legal profession about the reliability of opinion offered in court.”. The clear implication behind the “witch findings” items on the website set out at paragraph 95 above is that “experts” like HJ are in it for the money; that they are happy to “manufacture ‘evidence'”; and that they are in receipt of “phoney” letters of instruction. The result, Mr Hemming asserts is a “disaster”.

98. In my judgment, these comments are not only wrong and ill-informed; the simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position.

Wall LJ went on to say at para 127:

In my judgment, the arguments advanced by Mr Hemming in this case are ill-informed and tendentious. They are contradicted by the evidence, and must be rejected. I think this most unfortunate. Nobody who works in the Family Justice System regards it as perfect: most of us see it as under-resourced and struggling to deal with the work loads thrust upon it. Constructive criticism, particularly from those in a position to bring about change, is to be welcomed. I am myself in no doubt that the system must change and adapt, and I have spoken many times in public in support of my belief that there needs to be greater transparency in order to combat the partial, tendentious and inaccurate criticisms made against the system. I therefore welcome the opportunity provided by this case to demonstrate that the system has operated properly, and that the criticisms made are unfounded.

Rejection of the official position

However, following the introduction of targets to speed up finding a home for children in care, some then argue that the ‘law of unintended consequences’  came into play and these targets acted to promote undesirable behaviour from those in the child protection system.

John Hemming has argued that these targets did little to help the older children already in care but rather had the effect of encouraging local authorities to issue care proceedings with regard to more ‘adoptable’ children so they would filter through the system, end up adopted quickly and improve the adoption rates.

This was denied at the time; see this report from BBC News On Line in 2008:

The Children’s Minister Kevin Brennan has denied claims that young children are being taken into care by local authorities to meet adoption targets. Mr Brennan has written to two national newspapers to say there has never been any financial incentive for councils to meet national adoption targets. The claims surfaced over the case of a baby in Nottingham placed into care just hours after being born. Liberal Democrat MP John Hemming has accused the council of baby-stealing.

In a letter to The Times and The Daily Mail, Mr Brennan says there were national adoption targets designed to place more children in care into loving, family homes. But, he writes, “they ended in 2006; and there was never a financial incentive for local authorities to meet these national targets.”

The belief that children are removed from loving homes in order for LA’s to meet their ‘adoption targets’ persists to date.  There is no doubt that this version of events feels very ‘right’ to a significant number of people.

As Claire Fenton-Glynn comments:

While national adoption targets were set for some years, these ceased in 2006. The government emphasised that targets were intended to make sure more children who had been adjudged to need an adoptive placement were found permanent homes. They were not intended to affect the judgment of whether the child was in need of an adoption. However, despite the government’s statements, there is a danger that such targets do impact on such an evaluation, or at the very least, create the perception that they do so. Moreover, the government’s focus on adoption risks disadvantaging those children in care for whom adoption is not suitable. In the year ending 31 March 2014, only 16% of children who left the English care system were adopted, with others returning home, being placed with relatives, or with a special guardian, among other options. As such, an excessive focus on adoptive placements can mean that these others do not receive sufficient attention.

So what is really going on?

There are a number of elements we need to look at to try and work out whether assertions about a deliberately corrupt system contain any truth. Without doubt, the child protection system is not working well. We need to think more deeply why that is.

  • The continuing and repeating pressures on the child protection system which lead to growing distrust between parents and professionals;
  • The cost of care proceedings – why would a LA bear these costs without very good reason?
  • What do the statistics tell us about adoption rates for babies or very young children?
  • Adoption rates are now set to fall in the aftermath of the judgment in Re B-S.

 

A system under pressure

Helping children is a human process. When the bureaucratic aspects of work become too dominant, the heart of the work is lost.

The Munro Review of Child Protection Final Report

We consider the  history of concerns about the child protection system in more detail in this post. In brief, it seems that for very many years the system has become overwhelmed by the demands placed upon it. Excessive bureaucracy, dangerously high caseloads and low morale amongst social workers combine to work against good decision making and protecting children.

Some argue that it is the Children Act 1989 itself that has contributed to the problems, as it has pushed the law into ever less measurable levels of ‘abuse’ rather than setting out realistically measurable standards to govern the protection of children.

The fact that the system is under considerable strain and pressure is a serious problem for us all – but it is not evidence of deliberate malignity on the part of those decision makers.

 

The cost of care proceedings

It seems odd to suggest that LA deliberately set out to target children to adopt to ‘make money’ when you consider just how much care proceedings will cost them.  Research from the University of Bristol in 2011 said this:

Bringing care proceedings is a costly and time consuming business for local authorities. It has been estimated that each care case takes up 20 per cent of a full-time social worker’s working hours for a year (Plowden 2009). In addition, the local authority will have to contribute towards independent assessments ordered by the court and may need to instruct barristers (counsel) to represent it at court. In order to ensure that proceedings are used only where the local authority can prove its case and court orders are required, as well as to control expenditure, local authorities have established internal procedures for approving court applications. Legal advice and senior management approval are generally required even where an application if made for an order to remove or detain a child in an emergency (Masson et al 2007; DCSF 2008, para 3.3).

However, some will assert that the cost of care proceedings is actually an illustration of the problem – it’s a ‘gravy train’, keeping lawyers, social workers and experts in employment.  So if the financial burden on the LA does not reassure people that care proceedings are not taken lightly, what can we see from the statistics about children taken into care?

If Hemming and others are right, we should see a clear rise from 2000 in the number of babies or very young children taken into care and then adopted.

 

Lies, damned lies and statistics

See here for government statistics regarding looked after children. For more discussion of statistics put forward by John Hemming in August 2015, see these posts from the Transparency Project. The Full Fact Organisation considered the statistics in October 2015.

The statistics do NOT support an argument that more babies and young ‘adoptable’ children have been targeted since 2000, although it is clear that the number of children being adopted has been rising.

On 30th September 2014 the government issued a press release applauding this. Nicky Morgan, Secretary of State for Education said:

Today’s figures show a significant and sustained rise in the number of adoptions – an increase of 26% in the last 12 months. This means thousands more of our most vulnerable children are finding the loving and permanent homes they so desperately need.

We also promised to remove delay and frustration from the process for both children and adopters. Today’s figures show that we are delivering on that promise. The system is working more quickly, as well as providing more support to families after an adoption has taken place.

However, In November 2014 Sir Martin Narey raised concerns that since February 2014 LA decisions to pursue adoptions are down by 46% and number of placement orders granted by the courts has halved.

His concerns were so great that the National Adoption Leadership Board issued ‘myth busting’ guidance about what the court does or does not say about when adoption is necessary.

For further discussion see Pink Tape’s ‘Take me to your Leadership Board’.  We look at this issue in more detail in the post ‘When can the courts consider adoption is necessary?‘

 

The rise and fall of adoption rates.

So there was no doubt that adoption rates were rising. But they are probably going to fall again given that decisions by LAs to pursue adoption have fallen by nearly half.

See further the excellent article by suesspiciousminds about newspaper reports in May 2015 concerning the ‘freefall’ in adoption rates after the ‘chilling effects’ of various cases. 

So have the anti forced adoption campaigners had an impact? Are they responsible for this fall by unmasking the truth behind ‘adoption targets’?

We believe the short answer to that question is ‘no’.  To consider this in more detail,  we need to look at the reasons behind the previous rise in the number of adoptions. There are a number of possible explanations:

  • First; that the governments plans to speed up adoption rates for the children already in care were working well; OR
  • LAs were generally under pressure to avoid another Baby P scandal and were pushing for adoption in cases where before a child might have returned home; OR
  • LAs were suffering the consequences of difficulties in recruitment and retention of social workers so cases were not being assessed as carefully as they should be; OR
  • LAs were deliberately targeting younger, more ‘adoptable’ children and social workers would lie to ensure the children’s removal from loving and blameless parents.

 

Can the statistics help us decide what’s been going on?

The danger with statistics is that often they can be used to prove any kind of argument you want. Some opponents of the system have at times offered quite contradictory views about what is going on – see this report from the Daily Mail in 2011 which asserted that adoption rates were falling because adoptive parents were afraid of being called paedophiles.

The blogger Second Daddy comments:

If you want to learn about Forced Adoption then look into it yourself, make your own mind up. If you want to see the raw figures for adoption in 2010, the year quoted by John Hemmings MP in the above Wikipedia article, it’s here. You’ll see that there were 4550 adoptions in England & Wales that year; John Hemmings stated that there were 1360 “Forced” adoptions that year, 29.89% of the total. 1000 of these he claims were “wrong”, 21.89% of the total, 73.53% of the “forced” adoptions. So a third of Adoptions are “forced”. That’s a fairly big number, and it is something we’re aware of and it is a concern, but. But. It’s a guess. With the greatest of respect, Mr Hemming has no idea how many of these were “wrong”. He pulled that figure out of his ass, he has no proof, just a hunch.

However, if it is true that local authorities are or have been targeting younger and hence more easily adoptable children to improve their adoption rates, we should expect to see that reflected in the statistics and we should be able to see a clear rise since 2000 of babies being taken into care and subsequently adopted.

 

We have found the following statistics.

In 1976 4,000 babies were adopted. In 2011, 60 (according to the Daily Mail).

The article ‘Adoption Targets Row; the Sector Responds’ from 2007 in Community Care gives the following figures:

  • 2,490 under-fives in care were adopted in 2006, up from 1,010 in 1995.
  • 4,160 under-fives were first taken into care in 2006, up from 2,870 in 1995.
  • 1,300 babies aged younger than a month when they were taken into care were adopted in 2006, up from 540 in 1995.
  • The average age at adoption in 2006 was four years and one month.
  • 3,700 children were adopted from care in 2006, up from 2,700 in 2000.

So we can see there has been an increase in children being taken into care and being adopted over time from a low starting point, but that the average age for adoption in 2006 was over 4 years old. So 4 years after Hemming argues that babies are being targeted, this does not appear  to be reflected in the average age on adoption.

Compare this with statistics from 2013 

6% (4,310) of children looked after on 31st March 2013 were under 1 year old
18% (12,360) were aged between 1 and 4 years old
19% (13,260) were aged between 5 and 9 years old
36% (24,450) were aged between 10 and 15 years old
20% (13,730) were aged 16 and over

The average age at adoption in the year ending 31st March 2013 was 3 years 8 months

2% (90) of children adopted during the year ending 31st March 2013 were under 1 year old
74% (2,960) were aged between 1 and 4 years old
21% (850) were aged between 5 and 9 years old
2% (70) were aged between 10 and 15 years old
<1% (10) were aged 16 and over

So we see that only 6% of looked after children in March 2013 were under one year old.  Only 90  (2%) were under 1 year old when they were adopted. There is a small decrease from the average age at adoption in 2006 of 4 years 1 month, to 3 years 8 months in 2013 – six years later.

However, in 2013, 13 years after LAs were supposed to be targeting babies, across the country, they have only managed to get 90 babies adopted and the average age at adoption is nearly 4 years old.

On these figures, if there is a deliberate conspiracy to target and remove babies and young children, then the LAs are doing a pretty poor job.

In 2013 there were still 3 times as many children needing adoption as there were adoptive placements. This also points against any argument that care proceedings are targeting the ‘adoptable’ children – otherwise why are there so many children in care who can’t find adoptive families?

See further the article in Community Care;  ‘An ideological approach to adoption figures means we are missing important trends’. 

 

ITV Exposure Documentary

On 15th July 2014 barrister Martha Cover stated on the ITV documentary Exposure – Don’t take my child  that orders ‘permitting adoption’ had risen by 95% in the past three years.  This seemed high to us so we are very grateful to Andrew Pack for doing some digging and commenting:

Placement Order applications since 2011, and Placement Orders made by the Court since 2011.  These taken from the Court stats spreadsheets.

  • In 2011 – applications made 5821, orders made 5109.
  • In 2013 – applications made 7178, orders made 6082.

That’s about a 20% increase. Annoyingly, I don’t have the stats for 2010, which is presumably when Martha is calculating from, but I’d be REALLY surprised if it was as high as claimed. For that to be right, the applications in 2010 would need to have been around 3500… Interestingly, you can see a downturn on both in the last 6 months (i.e. since the Re B-S stuff was really percolating through) – and it is almost 50% down in the first quarter of this year from the high point.

I reckon the error here is in taking the numbers of children each year who are subject to Placement Orders, which is going up at a significant rate, as demand for placements outstrips supply and we add to the numbers each year with new cases, but also don’t clear the decks of the children the year before who needed placements.

A 20% increase in something as drastic as placement orders is still reason for concern, but it isn’t 95%, not by a long chalk.

  • Andrew has commented further about statistics in this post for the Transparency Project.
  • To see government data showing the speed at which Local Authorities place children for adoption see these statistics from January 2014.

 

Follow the money

You may be interested in these articles by Andrew Pack for more detailed consideration of whether it is possible that there  is a financial motive or incentive driving care proceedings.

He comments:

What I would say, for the ultra-cautious people, is that I would agree that the lack of transparency on ‘payments and adoption targets’ is deeply unhelpful and creates a genuine reason for people to feel sceptical, uncomfortable and unhappy. The absence of clarity and transparency is itself very shabby. It may or may not have distorted how many times adoption was recommended in final social work evidence, it may or may not have had an impact on individual people’s cases. At this point, we don’t have the evidence to draw a proper conclusion and that in itself is wrong. It creates at best, a fishy odour, and as we well know, “Justice must not only be done, it must be seen to be done”

See also our post on the issue of bonuses paid to social workers.

 

Why we reject the allegation of systemic corruption

Never attribute to malice that which can be adequately explained by stupidity.

The court judgments, culminating in Re B-S that have so concerned Martin Narey were right to point out the dangers of sloppy analysis. But why had some cases got into such a mess?  Because the system was ‘evil’, the social workers were telling lies to get their bonuses and that all the lawyers and judges closed their eyes to this because its actually a government policy?

Or is it more likely , that what we have is a child protection system that is often inefficient and/or overwhelmed by case loads? where mistakes are made, but rarely due to deliberate malice?

The conspiracy theories take hold because they feel ‘right’ to a lot of people who may have good cause to feel that they have not been listened to or treated fairly. This can lead people to  be unable or unwilling to consider a reality which does not accord with their strongly held perceptions:

People say: “Let the facts speak for themselves”; they forget that the speech of facts is real only if it is heard and understood. It is thought to be an easy matter to distinguish between fact and theory, between perception and interpretation. In truth, it is extremely difficult.

For further fascinating discussion about the impact of cognitive bias and how hard it is to get people to abandon their narratives, even if they are based on a false premise, see this article ‘Your Brain is Primed to Reach False Conclusions’.

 

What is our reality?

We have not been able to find evidence to support the assertion that the child protection system is designed and maintained deliberately to be corrupt or ‘evil’. Recent research from Cafcass says that LAs were right to make applications for care orders in 80% of cases they reviewed.

But that of course does not mean the system is perfect. Far from it. If 80% of cases are ‘right’ we still have 20% which are not and that is worrying. There are also serious concerns that an ideological ‘push’ for adoption is masking proper consideration of statistical trends.

We agree with that justice needs to be seen to be done and there should be as much openness as possible about such serious matters.

  • We accept that there can be serious consequences when a system is overwhelmed by cases; individual practitioners may lack support, and there is a risk of bad or even no decisions getting made. There is a particularly sad example of that in the case of A and S in 2012 where the boys’ Independent Reviewing Officer had a case load three times in excess of that recommended by good practice.
  • Sometimes mistakes are made because lawyers and doctors got it wrong about the medical evidence. Here is an example of a case where the court decided there wasn’t enough evidence to conclude that a child suffered non accidental injuries as this child also had rickets due to Vitamin D deficiency.
  • There is no doubt that the Government wishes to speed up the adoption process and there are legitimate concerns about how the new Children and Families Act 2014 will operate. See further this article by Cathy Ashley of the Family Rights Group and here for the views of Barnados on the need to speed up adoptions.
  • We note the conclusions of the the Report of the Committee on Social Affairs, Health and Sustainable Development of the Council of Europe which was concerned by the high numbers of children in England and Wales who were adopted without parental consent, and commented (see para 74) that the UK’s refusal to reverse adoption orders where there had been a miscarriage of justice was a ‘misunderstanding’ of the best interests of the child, who had a right to return to his birth family.
  • Possibly the most serious problem is that social workers in child protection work are asked to wear ‘two hats’ at the same time – they are tasked with supporting families at the same time as they are gathering evidence against them. The tension and difficulties inherent in this dual role are obvious. See Wrennall, L. 2004 Miscarriages of Justice in Child Protection: a brief history and proposals for change.

But what we don’t accept is that these problems – as serious as they undoubtedly are – can legitimately lead to a conclusion that the whole system is corrupt and operating to ‘steal children’ to meet government endorsed targets.

We think it would be a great shame for children and parents if legitimate debate about problems in the system is overwhelmed by allegations that have no basis in fact and which serve only to make parents even more worried and frightened about what the system might ‘do’ to them and their children.

 

The Way Forward.

However, we accept that it is odd, if adoption really is the ‘gold standard’ for children that other jurisdictions do not seem to share the UK’s enthusiasm for adoption without the parents’  consent.

We should always be open to more discussion and debate about what we should be doing to secure the welfare of children.

You may be interested in this post describing the different approach in Finland, where children who are taken into care will Iive with foster families or in institutional care.  
You may also be interested in this article by an adoptive parent in the Guardian from 2012, discussing the difficulties caused by lack of post adoption support.
There are also concerns expressed by adoptive parents that they haven’t been given the full picture about their children’s backgrounds and this has caused enormous problems for the family. 

  • We agree that everyone who works in the system should be aware of the dangers of an insular or paternalistic approach to child protection issues.
  • We agree that adoption may not be the best plan for every child and there should not be an automatic assumption that adoption is best. There is an interesting article criticising ‘adoption driven systems’ here.
  • However, we think for many children subject to a final care order, it will represent their best chance of achieving a stable and loving home throughout their childhood.
  • We agree that placements with family members should continue to be investigated thoroughly.
  • We also agree that we need more consideration to how we support adoptive placements after an order is made as studies show the breakdown rates for adoptions can be as high as 25%. There is interesting research from the US here which looks at rates of adoption disruption and why they break down. Research published on April 9th 2014 by the University of Bristol offers another perspective on adoption disruption rates, concluding that they are low but emphasising the importance of post adoption support, particularly for older and more challenging children.
  • Social workers need more help to deal with the bureaucracy of their job, so they can focus on working with and supporting families – the ‘reclaiming social work’ model needs wider implementation.
  • What we don’t agree with is a debate that polarises around the term ‘forced adoption’ and politicians who advise parents to leave the country rather than engage with social workers.
  • Where we all hopefully agree is that every child has the right to grow up in a safe home and that any child protection investigation must be carried out quickly and fairly.

We hope this site can be part of sharing resources and information to promote open and honest debate about the child protection system.

You can read here about government sponsored research into the reasons why people are motivated to adopt or foster.

You may also be interested in what we say about post adoption contact.

 

 

Key Messages from the Department of Education Research

The Department of Education published ‘Adoption Cases Reviewed: an indicative study of process and practice’ in 2013 which provides a comprehensive review of contested adoption proceedings. Its key messages are set out below. While the review certainly did not find that everything was perfect, it did not conclude there was any evidence of systemic corruption or orders made for trivial reasons:

  • The study confirmed routine local authority and judicial compliance with the required procedural and legal framework for adoption. Parents’ rights to due process in contesting and opposing care, placement and adoption applications were ensured. Decisions were taken by the court in an appropriate way, following the full testing of evidence.
  • Local authority practice in the study cases pre-dated current statutory guidance, in which permanence is required to provide the framework for all social work with children and families. Where it lacked this perspective, social work intervention could not be relied upon to pursue effectively the protection and care planning that might have secured child safety on a permanent basis at home.
  • In addition, quality assurance of child protection and care planning was insufficiently robust.
  • Where risk assessment and protection and care planning lacked confidence and decisiveness, the right of the child to have a safe and permanent family life secured in a timely way could be compromised. Similarly, the right of parents to effective intervention to help them make necessary changes could be neglected where permanence principles were not applied equally to the process of rehabilitation.
  • While no clear pattern of contestation emerged in these cases parents often argued that the local authority had sought merely to gather evidence to make the case against them, rather than intervene purposefully to support the changes required to keep the child safely at home.
  • Extensive use of independent expert evidence and advice provided a guarantee that harm and risk had been assessed fully and decisions appropriately informed, once the case was in proceedings. However, the use of experts also caused duplication and delay. Current proposals for reform will need to ensure such evidence is deployed effectively within the sharper case management regime.
  • This study suggests that the enhancement and quality assurance of the expertise and effectiveness of social work within the inter-agency system should attract policy attention. Timely and proportionate decision making is undermined as much by lack of case management continuity and of grip in making a judgement about parents’ capacity to change in the local authority as it is in the court.
  • The reform process should be underpinned by a review of the philosophy, organisation and support of local authority case management in protection and care planning, to ensure reliability of compliance with current statutory guidance that a permanence perspective is employed as a matter of routine.
  • The reform process should also include a review of the availability and effectiveness of post-placement support for birth parents in all forms of permanent placement, including placement at home.

 

The LA tell me my child should be in foster care

What is foster care?

Under the Children Act 1989 section 22C, if a LA is ‘looking after’ a child – i.e. that child is either subject to a care order or the parents have agreed the LA should find the child a home under section 20 of the Children Act – the LA must arrange for the child to live with either:

  • a parent;
  • someone who has parental responsibility
  • or someone who has a child arrangements order that states the child should live with him or her.

BUT if that isn’t possible, either because it is not ‘reasonably practicable’ OR would not be consistent with the child’s welfare then the LA must put the child in ‘the most appropriate placement available’ (see section 22C(5). These ‘appropriate placements’ are  listed as:

  • placement with a person who is a relative or friend or otherwise connected with the child and who is also a LA foster parent
  • placement with a LA foster parent
  • placement in a children’s home
  • any other placement which complies with regulations.

 

LA Foster Placements

Under the Children Act 1989 Section 22C(6), one option for a ‘looked after’ child is to go to a LA foster parent. A LA foster parent is defined as a person who is approved under regulations made by virtue of paragraph 12F of Schedule 2 of the Children Act 1989.

These regulations in England governing such placements are the Fostering Services (England) Regulations 20112 as supplemented by the Care Planning, Placement and Case Review (England) Regulations 2010.

Therefore, the LA may only place a child with a foster carer if the foster carer has been approved in accordance with the regulations, and the foster carer has entered into a foster care agreement either with the LA or with another fostering service provider.

The LA must continue to monitor the child’s welfare and visit the child at the foster home.
Emergency and temporary placements with LA foster parents may only be made in accordance with and for the time specified in the regulations.

Ending a foster placement

A LA which has arranged the placement of a child must not end the placement without carrying out a review,  unless there is an immediate risk of significant harm to the child or the placement must end to protect the child or others from serious injury.

Duty of LA to promote contact with child in foster care

If the child is subject to a care order then the LA must provide ‘reasonable contact’ under section 34 of the Children Act 1989. If the parents have agreed to the foster placement, the LA has a duty to promote contact between the child, parents and other connected people unless this would not ‘reasonably practicable’ or not in the child’s best interests. Parents also have a duty to keep the LA informed about where they are living. See further Schedule 2 para 15 of the Children Act 1989.

Private Fostering

A ‘privately fostered child’ for the purposes of the Children Act 1989 section 66 is a child who is under the age of 16 years and who is cared for, and provided with accommodation in their own home, by someone other than:

  • a parent
  • a person who is not a parent but who has parental responsibility
  • a relative.

A child is not a privately fostered child while he is being looked after by the local authority or if the person caring for and accommodating him has done so for less than 28 days and does not intend to do so for any longer.

There is also a detailed list of exemptions to the definition at the Children Act 1989 Sch 8 paras 1-5. In the case of a child who is disabled, the definition extends to a child who is under the age of 18 years.

Private fostering is regulated by Part IX of the Children Act 1989. The LA are under a duty under section 67 of the Children Act to make sure that children in their area who are privately fostered are being properly looked after. Some people are disqualified from being private fosterers, for e.g. those people convicted of certain criminal offences. You will need to get written permission from the LA to be a private foster carer in these circumstances.

If you want to foster a child privately must give written notice to the LA of the proposal at least six weeks before the private fostering arrangement is to begin. Where the private fostering arrangement is to begin within six weeks, the LA must be informed immediately.

 

Further reading

See our post on the differences between adoption and fostering.

For the duties of a LA towards a child in foster care, and children who have been in foster care see section 22 – 24D of the Children Act. Generally, the LA should provide accommodation, pay for the child’s upkeep, visit the child in placement and provide ‘personal advisers’ and ‘pathway plans’ for children to ease the transition from foster care to independent living.

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess. 

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

“A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

 “Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. [But note comment about ‘blind-siding’ below in Further Reading].

Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

 If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

 I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.

Further reading

An appeal was allowed against a judge’s decision in Re A (no 2) (children: findings of fact) [2019] EWCA Civ 1947 where the Judge came up with his own ‘theory of the case’ that had not been argued before him and which was not supported by the evidence. The Court of Appeal commented:

The judge’s conclusion also faced insurmountable procedural objections.
He had revealed his thinking about FGM in general but at no stage had he unveiled the specific finding that he had gone on to make. The parties had been blindsided by a finding that not only departed from the way in which the case had been put but actually contradicted it (see [112], below).

See the case of D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663 (19 June 2024) which raised issues about the use of medical research literature as evidence in care proceedings. The Judge was critical of the parties for not addressing medical papers in depth in their submissions, despite cross examination that focussed on the similarities between this case and cases described in medical research. The Judge set out her analysis of the medical evidence in an Annex to the judgment.

The parents appealed on the basis that the Judge had acted as her own expert and made findings as a result of her analysis of the medical research. She made findings that were not explored with the parents in evidence or with counsel in submissions and ignored the findings of credible witnesses.

The Court of Appeal found that reliance on research literature is part of the evidence of such a case but the Judge must exercise caution and cannot use analysis of research as a ‘stand alone’ method of trying to decide what happened. There are also obvious difficulties with research in this field, such as the lack of empirical research and relatively few cases with unequivocal evidence.

The Court of Appeal found the Judge’s analysis of the medical literature unnecessary and disproportionate and she elevated this analysis of the research to such an extent that it became ‘the prism through which she assessed the rest of the evidence’.  The judge also failed to give proper weight to the ‘protective factors’ in the wider canvass of evidence, such as the parents’ prompt attendance at hospital.

Patterns of injury observed in research so far – see para 71

  • Subdural haemorrhages are statistically significantly associated with abusive head trauma.
  • Retinal haemorrhage[s] correlate strongly with abusive head trauma in children under 3 years old.
  • Falls in infants are common. Most falls result in no injury and serious injuries from short falls are very rare.
  • Subdural haematoma[s] arising out of short falls are low probability.
  • There is a significant association between spinal injury found on the MRI and abusive head trauma.
  • The two main theories that are set out in literature to explain spinal blood are tracking and direct injury and none of the literature or the experts set out a well accepted alternative explanation so any alternative remains in the realms of the unknown. This is an area which is contentious.
  • Symptoms are proximate to shaking injuries but dating them remains contentious and reliance on perpetrator statements (as with all witness reports) may not be reliable.

Bristol Family Law Class October 1st 2015

Sarah Phillimore attended the Family Law Class at Bristol CJC on 1st October 2015. 

HHJ Stephen Wildblood QC

This conference is the first of its kind. It is open and reportable for the public. It is not possible to speak about family law without touching very raw nerves or on topics that are controversial. Please don’t disrupt the conference. If this fails, it is highly unlikely any others will be held. What we are doing is being observed by many people. Part of our aim is to make the family court system as transparent as possible. We hope you will feel this is important as first of its kind and recognise our good intentions. You are only hearing from me for a short while. I am Stephen Wildblood the Designated Family Judge (DFJ). I have responsibility for the family justice system in five counties including Bristol.

Justice has got to be accessible. People must understand what it is – how to come to court and the process that is in effect. We serve the community and the community must know what we do. We want to outline help that is available. We have developed a unique system in this court – we want you to know about it. You don’t get many judges, barristers, academics to face the public and deal with questions they don’t have advance notice about.

This is reportable conference. People may write as they see fit. I don’t tell you what to say about it. People have their own views.

We can’t discuss what we think the law should be. Its not our opinion that matters. Our intention today is to give you information. I have to uphold the law as it is. We cannot discuss specific cases.

Advice – don’t come to court. I am up at 6am and work until 10pm – midnight. Workload is increasing month on month. Working flat out. Private and public law cases up. We are getting many more litigants in person. That is a particular feature to explain why we are organising conferences like this.

Variety of cases we deal with – not all ‘Baby P type monsters’ – vulnerable people.
Private law – custody and access now child arrangements.
Public law – care
Relationship breakdown – divorce

Judi Evans
Great to see so many people interested in family law. People dealing with very emotional subject matter and have to get to grips with terminology. I will help you understand that. Private law cases are brought by one of the parents.
Child arrangements orders – used to be custody and access, then residence and contact. Name changes again. Who the child lives with or spends time with.
Change of surname. Permission to take abroad.

How are private law cases decided? – Welfare checklist of Children Act 1989.
People are actively encouraged NOT to come to court. No order principle. If parents can agree, they are the ones that should be making the decisions.

Where should a child live? No presumption in favour of mother – legislation is gender neutral. No presumption about amount of time child spends with either parent. Looking at parental responsibility.
Should all parents have PR, married or not.
There should be an effective relationship with both parents unless exceptional reasons why not. Many forms of contact between children and parents. Direct, indirect, overnight, or visiting.
Mediation – will be encouraged to reach a solution.
Cafcass – try to help parents reach agreement.
Enforcement – decision embodied in court order. But we want to encourage you to make your own decisions about your child.
SPIP – Separated Parents Information Programme – to understand impact on children of relationship breakdown

Zahid Hussain
Public law – the available public law options. Supervision, care and placement orders. Range of orders – least intervention to greatest.
How difficult are these cases? – Very. No case is the same. Each case represents its own challenges for each individual. Court assisted by professional evidence.
Parents participate fully in proceedings and give evidence. Court makes final decision and may disagree with SW and guardian.
What is more serious than an order placing a child for adoption? Stirs a lot of emotion.
Nature law and common sense require it is recognised that best place for child is with natural parent unless proved otherwise.
Test of significant harm and link between that and care provided by parents.
Threshold criteria. Sets out what harm must entail. Standards of parenting vary. Court is not one of social engineering. Even if significant harm is found, court does not necessarily make a care order.
Important to look at what support can be provided. The LA expected to file a care plan which will set out proposals for plan for child.
26 week time limit – since 22nd April 2014 last year, care proceedings should be concluded without delay and within 26 weeks unless good reasons. It is maximum.
Major issues – some LA don’t bring cases swiftly enough. Section 20 accommodation lasting too long.

 

Louise Tickle: What can I report about – very little. Not generally allowed to report on detail of dispute. Can apply to the Judge to lift the restrictions. In the moment I am in the process of making that application.  Judges can decide to hear a case in open court but doesn’t happen very often.

Things don’t change much after case concluded but not enough to interest most media in reporting. Can’t report detail.

 

Emma Whewell of UWE talking about relationship breakdown. Sometimes court has to decide who is a parent. Division of financial assets etc. She details the resources available for parents and other litigants in person.

Then some practical advice from Judi Evans and HHJ Wildblood QC – be prepared! Consider what witnesses and documents you need in advance. If you are tired and want a break ask for one! remember that orders are orders and not invitations for a discussion. Remember that appeals are rare – only when judge gets things wrong.

Feedback invited.

Discussions with audience

What percentage of wrong decisions are acceptable? – HHJ Wildblood: none. The burden on Judges is huge. You are making the most serious order you could possibly make. Taking child away from parents. You are legitimising child into another family. Consequences for the rest of the child’s life and you will materially effect child’s natural family. I get at least one application a month where someone is saying I want to see my adoption file – but my parents’ adoption file!

Know thyself – we all want to know where we come from and who we are.

How many mistakes are acceptable – none. Like how many mistakes are acceptable in surgery. They happen but not acceptable.

Several clients of the PSU say if they had known about stresses of litigation, they would not have started. Should court survey litigants to find out what further education required? – HHJ WQC: One of things you don’t get as a Judge is feedback. That’s why I am keen to do conferences like this. Open forum encourages Judges to hear what other people think and force us to think more deeply. External feedback is so valuable.

PSU volunteer – people are hugely effected by way they are treated in court process. They want a fair hearing. Have you done a survey of your users?

HHJ WQC – there has been research. Suggestion that people are more concerned about fairness in process. Then more prepared to accept outcome. That has limitations. People are also concerned about outcomes – if child adopted against your wishes. The ultimate result is thing of greatest import. I accept process must be fair. My view that both system and outcome must be fair.

Julie Haines – criticisms can be put in skeleton argument and preamble in grounds of appeal. That is why a lot of parents want to appeal – they want Court of Appeal to know what is happening in court room. Refreshing to see your criticism of some failures of LA. whole raft of things that Court of Appeal gets to hear about. A useful exercise. Parents don’t want to ever give up.

HHJ WQC – when its got to permission to appeal, things have gone wrong already. I have stopped a case and referred parents to a support group. Case stopped at next hearing and LA withdrew. Please make use of support. Very important that system seen as fair and humane.

Question – Concern that parents’ solicitors are advising parents not to contest at ICO and wait until final hearing. parents don’t feel knowlegeable enough to overrule representation.

Judi Evans – very difficult to make a generalised comment about that. Can’t trespass on individual cases. Test for ICO is lower – if you embark on interim hearing, findings will be made.

Zahid Hussain – ICO should be seen as a ‘neutral holding order’ shouldn’t give one side advantage.

HHJ WQC – ICO with removal –  Judge must be satisfied child’s safety demands immediate separation. Can’t overlook impact on young mother. She agrees ICO and by FH she may have given up hope. They are not lightly made, I don’t make them lightly. Very astute to effect they may have. I do apply test set down by law. You may be able to find mother and baby placement. I try to keep children with parents if possible. If its not possible… point about not having full blown hearing at interim stage, it would be very prejudicial. If something is not proved it is treated as not happening. We are not a court of tittle tattle. No smoke without fire is the adage of an idiot.

If people give evidence on oath and it is found to be false, that could lead to prosecution for perjury. Family court does not treat evidence lightly. It applies across the board. Applies to LA witnesses as well. Anyone who gives false evidence will be in serious trouble.

Question – problem of drift of section 20. there are problems but in some circumstances it works very well.

 

See Further

Family Court information – advice website for families in Bristol, Bath, Weston and Gloucester area.

The Way We Are – accessing the court after LASPO – article by HHJ Wildblood QC looking at the recent initiatives in Bristol to improve access to the family courts.

Has the child’s welfare pendulum swung too far – are Parents’ rights disregarded?

We are grateful for this guest post by contributor and parent Maya Birdwood-Hedger.

The current state of the law is probably best summed up by Re B (A child) [2009] UKSC . In summary, the court held that it is only as a contributor to the child’s welfare that parenthood assumes any significance. Have we gone too far in our focus on the welfare of the child and the child alone as the issue of paramount concern? Can the interests of parents and children be so easily distinguished?

Introduction – what is meant by parental rights and responsibility?

Lord Steyn, writing extra-judicially, said: “A constitutional democracy must protect fundamental rights. It is morally right that the state, and all who act on its behalf in a broad functional sense, should respect the fundamental rights of individuals. Without such a moral compass the state is bound to treat individuals arbitrarily and unjustly.” [Lord Steyn – quoted in Brayne and Carr. Law for social workers/ 10th edition/ Oxford: Oxford University Press, 2008, 75]
Bainham and Gilmore ask two separate (albeit connected) questions:

  • is it possible to identify independent interests which parents have in relation to their children?
  • If so, should the law recognise and accommodate these? [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 328]

To answer the first question, they quote philosopher David Archard:

Being a parent is extremely important to a person. Even if a child is not thought of as the property or even an extension of the parent, the shared life of a parent and child involves an adult’s purposes and aims at the deepest level… parents have an interest in parenting – that is, in sharing a life with, and directing the development of their child. It is not enough to discount the interests of a parent in a moral theory of parenthood. What must merit full and proper consideration is the interest of someone in being a parent.[ Archard/ Children, Family and the State/ Ashgate 2003, 94]

Although the second question is more difficult to answer, given the current commitment of the law to the welfare of children, Bainham and Gilmore say that there are at least two good reasons why the law should recognise the interests of parents:

  • once parentage is established, very wide-ranging and extensive burdens are placed by the law on the parents – financial, emotional and practical. Moreover, these responsibilities last for 18 years and longer than that if more than one child is involved.
  • Secondly, the law needs to reflect the reality of everyday life.

The honest position is that parents do not, and are not required, to act at all times with their children’s interests paramount in their minds. It would be far better for this to be transparently and openly acknowledged rather than to act out a pretence that only children’s interests count.[ Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 329-330]

Herring distinguishes three different forms of parental rights:

  • Parents’ human rights, the rights that parents have as human beings, e.g. a right to free speech. These rights include those protected by the Human Rights Act 1988.
  • Parents’ child-centred rights. These are the rights that are given to parents in order to carry out their parental obligations, e.g. to clothe, feed and house the child.
  • Parents’ parent-central rights. Here Herring refers to law professor and author Alexander McCall Smith who explains that parent-centred rights are given to parents not specifically to further the welfare of the child but to reflect the interests that parents have in bringing up their children in the way they wish. An example of this may be religious upbringing. Here it may be impossible to prove that one particular form of religious upbringing promotes a child’s welfare better than any other or no religious upbringing. The right of a parent to involve their child in religious practices does not necessarily reflect the welfare of a child, but rather promotes the interests of the parent to raise the child in accordance with the parent’s religious beliefs. These parent-centred rights could be said to further society’s interests as well in that children are brought up to have different beliefs, interests and lifestyles, thus contributing to a culturally diverse and rich society[Herring, Jonathan / Family Law/ London: Routledge, 2012, 145; McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.]

Historic developments

As Sawyer explains, “children were historically useful as labour or as a source of income by being hired elsewhere” [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility/ Oxford: Hart Publishing, 2009: 228] but gradually a growing perception that parents did not always know or do what was good for their children did lead to the idea of children having their own place in the legal process.

According to Hendrick (2005), the Children Act 1948 heralded a new approach to parent-child relationships, which encouraged the newly established Children’s Departments “to view children with individual human beings with both shared and individualised needs, rather than an indistinct mass.” Thereafter the parents did not formally appear during care proceedings, but effectively exercised their legal right of representing their children in the proceedings. Soon after the Adoption Act 1949 allowed adopting children without their parents’ consent on the basis that the parents were unreasonably withholding their consent. [Adoption of Children Act 1949, s.3 (1)]

The further shift appears to have happened with the death of Maria Colwell in 1973: her mother and stepfather successfully argued she should return home to them, and then the stepfather killed her. Following that case, section 64 of the Children Act 1975 provided that children in care would be represented by professional Guardians ad Litem – trained social workers. Further on, the 1989 Children Act provided that the court should appoint a guardian ad litem for the child in all “specified” (broadly speaking, public law) proceedings unless it was satisfied that the child’s welfare would be adequately safeguarded without one [Children Act 1989, s 41].

The duty of the social worker to balance between children’s and parents’ rights was established even more firmly in the report by Martin Narey for the Times newspaper: it was proposed to give greater prominence to adoption in social work training so that social workers’ role is seen as unequivocally that of protector of the child rather than friend of the family [The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011.]

The Children Act 1989

There is recognition that The Children Act 1989 represents the philosophy of its time, i.e. it “ostensibly put the child at the centre of all proceedings about the family”. [Sawyer, Caroline/ Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 228.]

Section 1(1) of the Children Act provides that “the child’s welfare shall be the court’s paramount consideration.” Bainham and Gilmore question if paramountcy can actually survive the Human Rights Act 1988. [EDIT – It has: see this article by Claire Fenton Glynn] They reiterate that adult rights to respect for private and family life must be respected and must not be interfered with unless the specific justifications envisaged by Article 8(2) exist and only when they are necessary and proportionate to a legitimate aim. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 62-63]

Below we will consider some situations where courts can interfere in family life.

Private law orders

According to Wallbank (who used the 2004 data), only 10% of parents sought help from the courts to resolve issues regarding post-separation arrangements concerning children. [Wallbank, Julie/ Parental Responsibility and the Responsible Parent: Managing the ‘Problem’ of Contact/ in Responsible Parents and Parental Responsibility Oxford: Hart Publishing, 2009: 304] The numbers may have plummeted further, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removing legal aid for most private law cases. [Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14]

Section 8 of the Children Act 1989 sets out and defines three orders, known as “s 8 orders” and regulating the exercise of particular aspects of parental responsibility while leaving parental responsibility itself intact. The “child arrangements order” replaces the old ‘residence’ and ‘contact’ orders following the 2014 Children and Families Act. This allows the courts to address the practicalities of with whom the children will live or have contact. A “prohibited steps order” allows the court to prohibit the exercise of certain aspects of parental responsibility while a “specific issue order” to determine a specific question.

Section 11 of the Children and Families Act 2014 provides a presumption that the involvement of a parent in a child’s life will further the child’s welfare, unless the contrary is shown. ‘Involvement’ means ‘involvement of some kind, either direct or indirect, but not any particular division of the child’s time’ [CFA 2014 s 11(2)(2B)]

The extent to which the legal system should promote shared parenting has been the subject of considerable debate. Fathers’ rights organisations have been campaigning against the “social catastrophe” of fathers not being allowed access to their children. [Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14] There is, however, some evidence that shared parenting may be an independent risk factor for younger children as well as those who become caught between parents in high conflict. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 224.]

 

Commonly used orders in public law

This section looks at the range of orders the court can make in the course of care proceedings.

Emergency protection order

Under this order the court may remove a child from the household if there is reasonable cause to believe that the child is likely to suffer significant harm if—

(a) (i) He is not removed to accommodation provided by or on behalf of the applicant; or

(ii) He does not remain in the place in which he is then being accommodated;

(b) (In the case of an application made by a local authority—

(i) Enquiries are being made with respect to the child under section 47(1) (b); and

(ii) Those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency. [Children Act 1989, 44(1)]

In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J (as he then was) reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular. The guidelines are that “save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. [X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342]

Care and Supervision Orders

On the application of the Local Authority or the NSPCC the court can consider making either order if the provisions of section 31 of the Children Act 1989 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm. Under the Care Order the Local Authority obtains parental responsibility for the child. [Children Act 1989, 33 (3)] Although de jure the parents also retain parental responsibility, in reality it allows them little more than the right of consultation.

While a supervision order is in place, it allows the Local Authority “to advise, assist and befriend the supervised child”. [Ibid. 35 (1) (a)] However, if the parents refuse to comply with the supervision order, the Local Authority is likely to apply for a care order, even if the parents maintain that they are capable to look after their children without supervision or support. That becomes apparent in the judgement by Mrs Justice Parker:

Throughout these proceedings it has been the father’s view that he can cope; he can be trusted; in deciding to make sure the support is there. He is opposed to the role of the local authority; and he says that their anxiety to check that all is well with the children is misplaced because it is totally unnecessary. But the local authority has statutory duties in respect of all children in need and particularly children who are the subject of proceedings. [Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014), para 9]

In this case the application to remove the child was made because the Local Authority was concerned about the father preventing them from supervising the child. One can then argue that the needs of the child to be supervised by the Local Authority were viewed by the court as superior to the parents’ right to care for their own children.

In the case above the child was placed in the care of the Local Authority. The family then had another baby who was taken into care on the interim care order shortly after birth. The father was later criticised by the judge for not having given the baby a first name. The judge believed it was emotionally harmful not to give a child a name. The father is this case is a British Indian and a devout Hindu. The parents were anxious to have their child named according to Hindu tradition, which involves a temple ceremony, Namakarana, which only the parents, close family and friends can attend. But the social workers insisted that they be present, lest the family “abduct” the child. [Booker, Christopher. The real story of the ‘baby with no name’/ In The Telegraph, 31.05.14]

Here one can see an apparent conflict between the rights of the parents and the rights of the child: the child has a right to be named. The parents have the parental duty to name their child, but also the right to name him in a ceremony, compatible with their religious and cultural beliefs. In this case they were not allowed to exercise that right, but the judge was more concerned with their failure to fulfil their parental responsibility.

The Placement Order

This order allows the Local Authority to place a child for adoption with potential adopters chosen by them. After the placement order is made, the Local Authority will implement a gradual reduction in contact between the parents and the child. Once a placement has been identified, the birth parents will usually be offered a final contact with the child, sometimes euphemistically described as a “wishing you well” contact and sometimes more accurately described as a “goodbye” contact. The majority of parents can expect no more than “letterbox” contact once the child has been placed. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 677.]

The “goodbye” contact is understandably traumatising to both parents and children, but, when the parents cry, they can get criticised for “emotional abuse”. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

Once the child has been placed with the prospective adopters and lived there for at least ten weeks, they can apply for the Adoption Order to be made. One of three conditions under section 47 of the Adoption and Children Act 2002 must be satisfied before the court may make an adoption order.

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) That the parent’s or guardian’s consent should be dispensed with.
(3)A parent or guardian may not oppose the making of an adoption order under subsection (2) (b) without the court’s leave.

(4)The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) Either—
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) The child was placed for adoption under a placement order, and
(d) No parent or guardian opposes the making of the adoption order.

The question of dispensing with parental consent has been at the heart of the conflict between what professionals view as “the best interests of the child” and the fundamental rights attached to the relationship of parent and child. While parents might understand that they are unable to look after a child themselves and may be prepared to have the child looked after by other people, they might not be willing to accept the complete termination of their legal relationship with the child. Traditionally English law has viewed this as a question which involves the rights of parents and has made provisions, through the statutory consent requirements, for the proper accommodation of those rights. The major change brought about by the 2002 Act is that the welfare of the child has, controversially, been put centre stage. This has led to legitimate concerns about what has happened to the rights of parents and may give rise to challenges under the ECHR. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 688.]

Section 52 (1) of the Adoption Act 2002 has abolished all the previous grounds for dispensing with parental consent except for one and has replaced them with the welfare principle:
The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

  • the parent or guardian cannot be found or is incapable of giving consent, or
  • the welfare of the child requires the consent to be dispensed with.

The second condition is now the major ground for dispensing with parental consent. It raises the serious question of what weight, if any, is to be given to parental interests or rights in preserving their legal relationship with the child. It becomes clear that if the court’s view is that adoption is in the child’s best interests, then whether or not the parent is behaving reasonably in objecting to this will have no bearing on the decision. [Bainham and Gilmore/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013, 689]

When a parent endeavours to oppose the making of the adoption order at that stage, they have to clear three fences which can be seen to be progressively higher fences. The first is to establish the necessary change of circumstances. The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission. The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings. [Borough of Poole v W & another [2014] EWHC 1777 (Fam), para 8]

In paragraph 24 of the judgement quoted above the judge recognised that the parents had demonstrated “a commitment to the child which entitles them to have their wishes and feelings considered” yet was concerned whether the child in question would “survive the process of rehabilitation” to her parents’ care. On balance, the judge decided to make the adoption order, concluding:

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.

Adoption order

Section 67 (1) of the Adoption Act 2002 provides that “an adopted person is to be treated in law as the child of the adopters or adopter”. Adoption thus terminates existing parental responsibility and transfers it to the adoptive parents; it also terminates the very legal relationship of parent and child. The effect of adoption was recently described by a Supreme Court Judge Lord Wilson as “an act of surgery which cuts deep into the hearts and minds of at least four people and which will affect them, to a greater or lesser extent, every day of their lives” (Wilson, 2014, 19 Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court)

As the purpose of adoption is to effect a permanent change of family, the making of an adoption order is seen as final, and it is thus very rare for an adoption order to be put aside, even where natural parents have suffered a serious injustice. In Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59] three children were adopted without parental consent because of what was thought to be non-accidental injury to one of the children who had suffered fractures. Later on expert evidence suggested that the fractures had been caused by a rare case of scurvy as a result of the child’s diet which had been recommended by doctors.

The Court of Appeal refused the parents leave to appeal out of time to have the adoptions set aside, having regard to the public policy considerations regarding adoptions as well as interests of the children: they were settled with their adoptive parents. The adoptive parents argued that overturning the adoptions would “cause enormous stress, anxiety, disruption and emotional / psychological harm, particularly to the children” (para 92).

Wilson LJ concluded that it was too late to set aside the adoption orders, considering the interests of the children: “almost four years ago they moved into alternative homes which they were told would be permanent and of which they would be full, legal members; and at that time they ceased even to see the applicants.” (para 204). Thus, the interests of the children prevailed to the extent that the Court effectively decided to leave the children in their “alternative homes”. The parents, on the other hand, are determined to remain living in the same house until their children are old enough to come and find them. “When she knocks on our door, we will be here with all the love and the kisses and the memories and hugs that we have all missed. I pray for that every night”, the mother said in a recent newspaper interview. [Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15]

The Children and Families Act 2014

The Children and Families Act 2014 came into force in April last year. Most practitioners agree that its main reform was at section 14, to introduce a time limit of 26 weeks for care and supervision proceedings, although the court can extend that period, but “only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly”. The main reason for the reform was the view that delays in care and supervision proceedings were harmful to children. “These family justice reforms put children clearly at the heart of the family justice system and focus on children’s needs rather than what parents see as their own ‘rights’”, announced Simon Hughes, the then Justice Minister. [Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14].

Many judges, on the other hand, are concerned that the imposed time limit could be in conflict with the court’s aim to determine the right outcome in the proceedings: “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.” [Re B-S (Children) [2013] EWCA Civ 1146, para 49]

Concern about the time limit has been expressed by other professionals: for example, a study by the Family Drug and Alcohol Court (FDAC) concluded:

The government’s agenda for adoption reform places emphasis on speeding up decisions and action in placing babies and young children with potential adoptive parents. When combined with the push to complete care proceedings within 26 weeks, and the research evidence about the fragility of reunification in some circumstances, this could serve to heighten doubts about the value of FDAC’s focus on supporting reunification in cases where that is appropriate. [Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’  [Children & Young People Now, 01.05.14]

Reporting restrictions and transparency – a glimmer of hope?

There are long-standing and well-established “automatic restraints” on the publication of information relating to proceedings under the Children Act 1989. Section 97 of the Act provides that:
(2) No person shall publish [F3to the public at large or any section of the public] any material which is intended, or likely, to identify
(a) any child as being involved in any proceedings before [F4the High Court, a county court or] a magistrates’ court in which any power under this Act [F2or the Adoption and Children Act 2002] may be exercised by the court with respect to that or any other child; or
(b) An address or school as being that of a child involved in any such proceedings.

In addition to the “automatic restraints” courts can make injunctions preventing parents from discussing their legal cases with other parties even after the proceedings have been completed. However, parents who have lost confidence in the English family court system often turn to other organisations for support. A potential conflict thus arises between the parents’ rights for free speech and the child’s life to a private life, and numerous authorities have grappled with this issue in recent times. For example, in November 2014 the EU parliament’s Petitions Committee condemned “unacceptable” moves to pressure people from giving evidence to MEPs at a time when most complaints about forced adoption or the unjust loss of children to social services are coming from Britain. “In my experience, the UK is unique in Europe for the secrecy of its family courts and for the threats and bullying by authorities of parents who want to speak out about their treatment,” said Tatiana Zdanoka, a Latvian MEP [Waterfield, Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14]

In Re J  [Re J (A Child) [2013] EWHC 2694 (Fam)] the father of four children, all of whom had been the subject of care proceedings, posted a film of the execution of the emergency protection order in respect of his youngest child. The film was shared on Facebook and YouTube. The issue for the court was whether or not there was justification for extending J’s anonymity after the care proceedings were over. The President of the Family Division agreed that the case raised “important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system”. He made an order contra mundum, but the restriction was only against the publication of J’s name, not his image, largely because internet viewers are unlikely to be able to identify a one day old baby.

The President expressed his view at paragraph 71 of his judgment:

The father wishes to share such information with others and, so long as he keeps within the confines of section 12 of the 1960 Act, why should he not be able to do so? And why should those who may wish to hear his views not be permitted to approach him?

Conclusion

Having considered orders frequently made in private and public law, it is my view that parents’ rights are often disregarded in favour of children’s rights.

Choudhry and Herring attempt to answer the question: why is it that children’s interests should be seen as being particularly important as compared to the interests of an adult? They suggest that an order which is interfering in a child’s right to private or family life is likely to be “far more of a blight” than an identical order on an adult’s life. This is because the child is less equipped to deal with setbacks in their interests and life changes. They lack practical possibilities of remaking life plans, experience, maturity and even intelligence to develop alternatives. Moving them from a place where they have an established set of friends would be particularly disturbing for a child. [Choudhry and Herring/ European Human Rights and Family Law/ Oxford: Hart Publishing, 2010, 234.]

This is, of course, true – but the result of the current policy of intervention is exactly that: many children are moved from their homes, parents, friends, siblings. Two younger children in the Webster family, for example, have never even met their siblings.

At a Multi-Disciplinary Conference “Is the child protection system fit for purpose?” (01.06.2015) recently retired High Court Judge Sir Mark Hedley suggested that children who have been removed from their parents may grow up and challenge the Local Authority: “What have you done to keep me in my family?”

Bibliography

Books:
Bainham, Andrew, and Gilmore, Stephen/ Children – the Modern Law/ Fourth edition/ Bristol: Jordan Publishing Limited, 2013.
Choudhry, Shazia and Herring, Jonathan (2010)/ European Human Rights and Family Law/ Oxford: Hart Publishing
Gilbert, Neil; Parton, Nigel and Skivens, Marit/ Child Protection Systems: International Trades and Orientations. Oxford: Oxford University Press, 2011.
Hendrick, Judith (2005.) Law and Ethics in Nursing and Health Care/ New York: Nelson Thornes Ltd.
Herring, Jonathan (2012.) Family Law/ London: Routledge.
McCall Smith, Alexander (1990). Is anything left of parental rights? In Sutherland and McCall Smith Family Rights: Family Law and Medical Ethics/ Edinburgh: Edinburgh University Press.
Sawyer, Caroline (2009.) Children’s Representation by Their Parents/ in Responsible Parents and Parental Responsibility. Oxford: Hart Publishing, 215-235.

Periodical articles:

Baksi, Catherine/ Family lawyers sound alarm on separating parents/ The Law Society Gazette, 14.08.14

Booker, Christopher. The real story of the ‘baby with no name’/ In the Telegraph, 31.05.14

Craig, Olga. Stolen by the state: A story of love and loss that’ll make you seethe – a mother falsely accused of abuse reveals her relentless hunt for her three babies. In the Mail on Sunday, 06.06.15

Family Justice Reforms to Benefit Children – Press release – GOV.UK/ 22.04.14

Fathers4Justice campaigner jailed for defacing Queen’s portrait. The Guardian, 05.02.14

Hayes, Derren. 26-week target ‘could limit help for substance misusing parents’ | Children &
Young People Now, 01.05.14

Lord Wilson gives the Denning Society Lecture at Lincoln’s Inn: Adoption: Complexities beyond the Law, 13 November 2014, The Supreme Court.

The Narey Report on Adoption: Our Blueprint for Britain’s Lost Children. /The Times. July 5, 2011

Waterfield, Bruno (2014.) Parents fight British social services ‘gag’ to petition European Parliament. In The Telegraph, 12.11.14

Statutes:

Adoption Act 2002
The Children Act 1989
The Children and Families Act 2014

Cases:

Borough of Poole v W & another [2014] EWHC 1777 (Fam)
Hertfordshire County Council v F & Others [2014] EWHC 2159 (Fam) (23 May 2014
Re B-S (Children) [2013] EWCA Civ 1146
Re J (A Child) [2013] EWHC 2694 (Fam)
Webster v Norfolk County Council and the Children/ by Their Children’s Guardian [2009] EWCA Civ 59
X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342

Parental Responsibility

What does it mean? And who has it?

Please see this free guidance from the Custody Minefield for further information. 

Parental responsibility (PR) was introduced by section 2 of the Children Act 1989. It replaced the concept of parental rights in section 4 of the Family Law Act 1987.

It is defined at section 3(1) of the Children Act as:

all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property

There is no other statutory definition of what PR means. It is often said that this is a matter of ‘status’ rather than ‘power’. If you have parental responsibility, you are responsible for making decisions in your child’s best interests – but that doesn’t mean you can veto the decision of anyone else who has PR (unless you have a Special Guardianship Order); nor you can attempt to ‘micro manage’ the daily decisions made by another parent.

The court described PR in this way in the case of Re D [2014]:

The concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all encompassing nature of the responsibility underpins one of the principles of the Act which is the ‘no order’ principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise. That the status relates to welfare not the mere existence of paternity or parenthood is clear from the decision in Smallwood v UK.

The court described it in this way in Re W (Direct Contact) [2012] EWCA Civ 999 (see para 80):

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ‘responsibility’ which is so clearly given prominence in the Children Act 1989, section 3 and the likely circumstance that that responsibility is shared with the other parent, it is hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post separation contact than may hitherto been the case.

In Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

PR in practice

Generally, if you are a parent with PR you should expect to be consulted by the other parent about major matters such as education and health issues. If different people who hold PR can’t agree, they will have to go to court to ask the Judge to decide what to do. The following are examples of situations where you need to inform and consult the other parent before making a decision. Day to day decisions about what time the child gets up, what he has for breakfast etc are not usually issues that you have to consult with the other parent about.

  • education – decisions about applying or attending school, which parent will attend what school functions and when.
  • which parent is spending what time with children in school holidays
  • planned medical or dental treatment which is more than just routine check ups
  • any decision to stop treating a child with prescribed medication.

Taking children abroad

You can only take your child out of England and Wales without the consent of anyone else who has PR for 28 days IF you have a child arrangements order (previously called a residence order).

If you don’t have such an order or you are out of the country for longer, and you don’t have the consent of the other parent with PR, you could be committing the offence of child abduction. Many countries will now require that you travel with a letter from the other parent, confirming that they consent to their child travelling.  See this article for further discussion.

Many parents are not aware of this and mistakenly think they do not need the other parent’s permission. If the other parent won’t consent, you will have to apply to court for a Specific Issue Order.

If you have a Special Guardianship Order (SGO) you can take the child out of the jurisdiction for up to 3 months without consent.

Different treatment of mothers and fathers

Men and women are treated differently when it comes to PR. Mothers and married fathers have PR automatically. An unmarried father has parental responsibility for his child by:

  • being registered as the child’s father on his birth certificate,
  • by a parental responsibility agreement entered into between the parents or
  • by a court order. An unmarried father can only lose parental responsibility by an order of the court to that effect.

Section 111 of the Adoption and Children Act 2002 [ACA 2002] amended the Children Act 1989 to give PR automatically to unmarried fathers who are on the child’s birth certificate after 1 December 2003.  See section 4(1).

The reasons for this were described in Re M (A Child) sub nom PM v MB and M (A Child) [2013] EWCA Civ 969 at [14]:

Since 1 December 2013 and by section 4(1) CA 1989 as inserted by section 111 Adoption and Children Act 2002, an unmarried father acquires parental responsibility by the inclusion of his name on the child’s birth certificate. That legislative change accompanied society’s recognition of and expectations for the exercise of parental responsibility by parents who are not married or in a civil partnership and who have separated with the consequence that the child does not live with one or other of them. It has become more common for parental responsibility to be considered by a court before other substantive welfare decisions are made because it is an important status which is an incident of the family and private lives of the adults and child concerned and which is reflected in the way in which parents should exercise their responsibilities for their child. It should be rare for a father not to be afforded this status.

What do the courts consider if a father is arguing for parental responsibility?

In  Re D [2014] EWCA 315 the Court of Appeal considered the case law.

Parental responsibility is an issue concerned with the upbringing of a child and therefore under section 1(1)(b) CA 1989 the child’s welfare will be the court’s paramount consideration. The court doesn’t have to consider the section 1(3) (the ‘welfare checklist’) but it’s probably a good idea and the court may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.

The paramountcy test is overarching and no one factor that the court might consider in a welfare analysis has any hypothetical priority. The factors that are often considered are the degree of commitment which the father has shown to the child, the degree of attachment which exists between the father and the child and the reasons of the father for applying for the order.

But these factors are NOT a ‘substitute test’ to be applied (see Re M (A Child) sub nom PM v MB and M (A Child) at [15] and [16]

 

Can parental responsibility be taken away?

Neither mothers nor married fathers can have their parental responsibility removed, unless an adoption order is made. This distinction has been found compatible with Article 8 of the ECHR. (See Smallwood v UK (29779/96) (1999) 27 EHRR CD 155).

Unmarried fathers can have their PR removed if the court finds this is in the best interests of the child but this is a very unusual step.

For a case where PR was removed from an unmarried father who had pleaded guilty to sexual offences against the mother’s other children and caused huge emotional devastation to the family,see Re D [2014] EWCA 315 discussed above.

For a recent example of this rare decision by a court to remove a father’s PR after his persistent abusive behaviour, see the case of C v D & Anor [2018] EWHC 3312 (Fam) (28 September 2018)

A father who caused catastrophic brain injury to a child was also stripped of PR. See K (CESSATION OF PARENTAL RESPONSIBILITY) [2019] EWFC B54 (09 October 2019)

As was a father who attempted to murdered the children’s mother and was sentenced to a minimum term of 13 1/2 years in prison – see X and Y (private law – change of name – termination of parental responsibility) [2021] EWFC B24 (19 April 2021)

Consequences for PR of different orders

A care order

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child.

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.
However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For further information about the impact of care and supervision orders, see this post.

A special guardianship order

The holder of the SGO has ‘enhanced’ PR and can override the wishes of others with PR. See 14(C) of the Children Act. For more information on SGOs, see this post.

An adoption order

This will sever all legal ties between the child and the birth family and the parents will no longer have PR.

Further reading

  • Children: Parental Responsibility – how is it gained and lost? (England and Wales) – 2017 House of Commons briefing, it considers the meaning of parental responsibility, and the fact that it is not a constant right, but diminishes as the child gets older and so can reach a sufficient understanding and intelligence of the consequences of decisions relating to them.
  • For a useful discussion about the development of ‘parental responsibility’ see from paragraph 19 of the judgment of the Supreme Court in September 2019 in D (A Child) [2019] UKSC 42 (26 September 2019) The majority of the court found that the ambit of parental responsibility could not extend to consenting to deprive a 16 year old of his liberty, if that child lack capacity to give his or her own consent.
  • Useful discussion from the Court of Appeal in Re S (Wardship: Removal to Ghana) – Courts and Tribunals Judiciary in 2025 about the intersection of PR and the child’s welfare when a 14 year old was tricked into going to Ghana to stay, and desperately wanted to return to the UK.