Author Archives: Sarah Phillimore

What do children think about opening up the family courts?

There is serious concern that opening up the family courts, for increased media access for example, is going to harm children and is not what they want.

The Children’s Commissioner investigated this issue in 2010 and said:

For our research, we spoke to more than 50 children and young people, and what they said raises a number of serious concerns. The overwhelming view was that reporters should not be allowed into family court proceedings because the hearings address matters that are intensely private. The events discussed are painful, embarrassing and humiliating and the children and young people said their deeply personal details were the business of neither newspapers, nor the general public.

They did not trust the press to get the facts right and felt strongly that articles would be sensationalised. They were worried about being identified and fear being bullied as a result.

It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge’s ability to make difficult and often life changing decisions in the child’s best interests.

You can download the report here.

There has been a further report by the ALC and NYAS in 2014 which you can read here.

The children interviewed were not happy with the idea of information about their cases being widely accessed and did not think that was a solution to dealing with criticisms of the family court system.

In the context of early discussions young people said they are not always informed about what is happening in their case – before or during proceedings. They said out dated paternalistic approaches by professionals are not in children’s interests: they need honesty and accurate information about processes and decisions about their care and at a time when they can make informed choices.

Directly involving children in the court process

In care proceedings children are represented by a solicitor and a guardian – this is called the ‘tandem model’ of representation. The solicitor may also instruct a barrister for certain court hearings. The child’s solicitor takes instructions from the guardian about what to do in the child’s best interests, unless the child can show that he/she has enough understanding to give their own instructions. This post considers various options open to the child who wants to directly express their wishes and feelings.

I don’t agree with what my guardian is saying and I want my own solicitors

If the child has a good enough understanding of what the proceedings are all about, s/he can chose to be represented by their own solicitor. The guardian should be alert to the possibility that an older child may not agree with the guardian’s recommendations, and that the child may want to give instructions directly to the solicitor.

Representation of children in proceedings is dealt with by Part 16 of the Family Procedure Rules.
The key test about deciding if a child has ‘sufficient understanding’ remains Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, which is discussed in the case of CS v SBH, link below.
For a case where the Judge decided a 14 year old child was able to instruct his own solicitor, see Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (29 June 2018)
A child can also write a letter to the judge or ask to speak to the judge directly – see discussion below.

There is a useful case from the Court of Appeal W (A Child) [2016] EWCA Civ 1051 which discusses the relevant test to see if a child is capable of instructing their own solicitors. The Court of Appeal decided that the Judge at first instance had been wrong not to allow a 16 year old girl to have the solicitor of her choice; there was a confusion over issues of ‘welfare’ and ‘understanding’.

The Court of Appeal agreed the relevant rule of the FPR to be applied was Rule 16.29 which sets out that when a solicitor is appointed for the child, the solicitor must represent the child in accordance with the instructions received from the guardian. If the solicitor thinks that the child wants to give instructions which will conflict with those received from the guardian and that the child is mature and understands enough to give his/her own instructions, the solicitor MUST conduct proceedings in accordance with the child’s instructions (rule 16.29 (2))

If the child wants to terminate the appointment of their solicitors, the child may apply to the court and the Judge will consider this application and the solicitor and the guardian will have a chance to have their say (rule 16.29 (7)).

See further the decision in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019) which considered how the FPR may differ depending on whether or not there was a new set of proceedings or that the child wished to instruct new solicitors within existing proceedings. The court set out at para 64 of the judgment the factors to consider about whether or not a child was able to instruct solicitors in an appeal:

The level of intelligence of the child
The emotional maturity of the child.
Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.
Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.
Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position…. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.
Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.
The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

I want to talk directly to the Judge

There is a very helpful article here from Family Law Week which discusses how Judges have become more willing recently to meet children and talk to them. However, the Judge must not use this meeting to collect evidence from the child, or test the existing evidence, because that that has to be done in court with everyone present. But this meeting will allow a child to tell the Judge what he or she wants and will allow the Judge to explain what the court does.

Such a meeting between Judge and child is not intended to undermine or displace the work of the guardian, but it is hoped that such meetings could help the child understand what is going on and feel reassured that people are listening.

Obviously, for very young children this could simply be overwhelming and not very helpful but it will be a matter for the individual Judge in each case whether he or she thinks meeting the child is the right thing to do.

Familly Justice Council Guidelines

In April 2010 the Family Justice Council published guidelines for Judges who want to speak to children. The purpose of the guidelines is:

… to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

What happens when meeting the Judge goes wrong?

For an example of the problems that can arise if a Judge doesn’t follow the guidelines, see the case of KP in 2014. Although this was a case involving the Hague Convention, (a dispute between separated parents who wanted the child to live in another country) the points raised apply to any situation when a Judge speaks directly to a child:

Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line. Having summarised the submissions of Mr Turner and Mr Gupta, with which we agree, we can set out the reasons supporting this conclusion in short terms as follows:

i) During that part of any meeting between a young person and a judge in which the judge is listening to the child’s point of view and hearing what they have to say, the judge’s role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.

ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.

iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.

iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.

v) The process adopted by the judge in the present case, in which she sought to ‘probe’ K’s wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge’s careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).

vi) In the same manner, the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives.

I want to give evidence in court

The courts used to be reluctant to agree that children should give evidence in court, but there has been a shift in attitude more recently as we see with the decision of the Supreme Court in re W [2010] UKSC.

When deciding whether or not a child should come to court and give evidence, the essential test is whether justice can be done without further questioning of the child. To answer this question, the court looks at two issues:

The advantages that the child giving evidence will bring to the determination of the truth.
The damage giving evidence may do to the welfare of this or any other child.

The following factors will help the court to weigh up these two issues.

The fair and accurate determination of the truth

The issues it is necessary for the court to decide;
The quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross examined;
Whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations;
The quality of any ABE interview and the nature of the challenge; the court will not be helped by generalised accusations of lying or a fishing expedition. Focused questions putting forward an alternative explanation for certain events may help the court to do justice;
Age and maturity of the child and the length of time since the events.

Risk of harm to the child

Age and maturity of the child and the length of time since the events;
The child’s wishes and feelings about giving evidence. An unwilling child should rarely if ever be obliged to give evidence and, where there are parallel criminal proceedings, the child having to give evidence twice may increase the risk of harm;
The level of support the child has and the views of the Guardian and those with parental responsibility;
The fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child;
The court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child as well as features peculiar to the child and case under consideration. The risk, and therefore weight, will vary from case to case.

The Family Justice Council issued guidance on children giving evidence in 2012.

For an interesting case where Judges in Court of Appeal disagreed with each other about how the Re W principles had been applied, see S (Children) [2016] EWCA Civ 83 (09 February 2016)

In the case of R (Children) [2015] EWCA Civ 167 a 14 year old was successful in her appeal against the court refusing to let her give evidence in support of her father, saying he had not abused her. Briggs LJ commented at para 36:

To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

I want to tell my story to the press

In 2003 Munby j (as he then was) heard the case of Angela Roddy. She was 16 years old and she wanted to tell her story to the press about becoming pregnant at 13 and then having her baby taken into care. She was allowed to be interviewed but the identities of her baby (Y) and Y’s father (X) would remain confidential.

Munby J commented at para 56 of the judgment:

56.The courts must face reality. We must, as Lord Scarman said, be sensitive to human development and social change. Angela may not yet be quite 17 years old but she is a young woman with a mind of her own and, as her solicitor B has said, a mature and articulate young person. We no longer treat our 17-year-old daughters as our Victorian ancestors did, and if we try to do so it is at our — and their — peril. Angela, in my judgment, is of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world. She is what Ward LJ described in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at p 30 as a “competent teenager taking [her] story to the press”. She is, to use the language of Woolf J (as he then was) in Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581 at p 596, “capable of making a reasonable assessment of the advantages and disadvantages” of what is proposed.

57.In my judgment (and I wish to emphasise this) it is the responsibility — it is the duty — of the court not merely to recognise but, as Nolan LJ said, to defend what, if I may respectfully say so, he correctly described as the right of the child who has sufficient understanding to make an informed decision, to make his or her own choice. This is not mere pragmatism, although as Nolan LJ pointed out, any other approach is likely to be both futile and counter-productive. It is also, as he said, a matter of principle. For, as Balcombe LJ recognised, the court must recognise the child’s integrity as a human being. And we do not recognise Angela’s dignity and integrity as a human being — we do not respect her rights under Articles 8 and 10 — unless we acknowledge that it is for her to make her own choice, and not for her parents or a judge or any other public authority to seek to make the choice on her behalf.

Reform Proposals

In July 2014 Simon Hughes announced at the Voice of the Child Conference the government’s proposals to permit all children over the age of 10 an opportunity to speak directly to the Judge. He said:

Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make a assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.

I therefore want to announce that it is the intention of the Ministry of Justice, and therefore the government, that we move as soon as is practical to apply in all our family justice proceedings in England and Wales where children and young people are concerned the policy that it will be the normal practice, the norm, that, from the age of 10, children and young people involved in public or private law family justice proceedings before the courts will have access to the judge, in an appropriate way which reflects their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.

Children and young people of 10 and over will therefore be given the chance to make clear their views in person or if preferred in another way. We will also work with the mediation sector to arrive at a position where children and young people of 10 years old and over have appropriate access to mediators too in cases which affect them.

The Minister also agreed with the following:

Children and young people should be given the opportunity to meet and communicate with the professionals involved with their case including workers from the Children and Family Court Advisory and Support Service ( CAFCASS), social workers, the judges and legal representatives; every child of sufficient age and ability should have the opportunity of meeting with the judge overseeing their case; every child should have the opportunity through Cafcass of submitting their views directly to the judge in writing; all children should be able to communicate their wishes and feelings to the judge; children and young people should be kept informed about the court proceedings in an age appropriate manner, kept informed of the stage their case has reached, and contacted prior to the first hearing, and have the opportunity of giving feedback through email, text, telephone or written form.

EDIT However, as of the time of writing this edit (Nov 2015) nothing further has been heard of these reforms and it is likely they have been kicked into the long grass.

FURTHER EDIT in 2018 it was confirmed that there had been no movement on these reform proposals and it is likely they will be shelved.

A 1 in 5 failure rate is not cause for celebration.

Cafcass care application study 2014

Cafcass recently published some research that they claimed showed:

that five years on from the tragic Baby Peter Connelly case local authority social workers are making timely and well prepared care applications for children at risk.

The final sample population comprised: 304 Guardians; 391 care applications; and 684 children. The guardians were asked a number of questions:

Whether the timing of the care application was appropriate, premature or late;
Whether there was any other course of action which, in the view of the Guardian, the local authority should have taken before issuing proceedings;
Whether the local authority met the requirements placed on them by the revised PLO; and
Whether new or updated assessments had been commissioned prior to the making of the application and, if so, whether the assessments were in the child’s best interests.

The key findings of the research were:

Guardians believed there was no other course of action [than making an application] available to local authorities in 84% of cases.
In 84% of cases Guardians thought that the local authority had met or partially met the requirements of the revised Public Law Outline (PLO); and in 32% of the cases where Guardians indicated that the local authority had not met the requirements they considered this was appropriate.
Neglect remains the principal category of concern for children who were, or had been, subject of a child protection plan; and was identified by Guardians as being the principal trigger for care applications where the child was not subject of a plan.
Guardians considered that the timing of the application was appropriate in 54% of cases.

This was reported by Community Care as very positive:

“It is fantastic news that Guardians consider that, in general, local authorities are bringing the right cases to court, in a timely way and with the cases being well prepared,” Cafcass chief Anthony Douglas said.

Is ‘fantastic’ really the mot juste here?

Failure to consider other options

The most common alternative to care proceedings suggested was further assessment but it is clear that there was a wide range of options the guardians felt had not been explored when they should have been.

Table 3 Category of Guardians’ views on whether an alternative course of action should have been taken

Further assessment 20
Family group conference 18
Temporary kinship placement 12
Child protection plan 11
Referral to other services 11
Section 20 accommodation 6
Parenting education programme 5
Respite care 2

Failure to meet the requirements of the PLO

The 84% of cases where the PLO requirements were met or ‘partially met’ masks a very worrying percentage of those cases where the LA had ‘entirely met’ the requirements of the PLO – in only 43% of cases.

The guardians considered failure to meet the requirements of the PLO appropriate in only 1/3rd of their cases.

No letter before action

A letter before proceedings was sent in only 63% of cases. Where a letter was not sent the guardian’s thought this was in the child’s best interests in only 45% of cases. This is an important document which is meant to ‘enable the parents to obtain legal assistance and advice, prior to a meeting with the local authority, the intention of which is either to deflect proceedings or, at least, to narrow and focus the issues of concern’.

Of course, in some situations, such as emergency there won’t be time to send such a letter. However, given that parents often complain they do not understand why the LA is making an application for care proceedings, this seems a significant and unfortunate failure.

It is not clear from the report what percentage of the 37% of cases where no letter was sent were ’emergencies’.

Timing of the application

A significant proportion of applications – 46% – were not made at the right time. 3% the guardians were unsure about, 5% were felt ‘premature’ and 39% were ‘late’. The report comments:

Cases where children were accommodated for extended periods also featured, either under s20 or with unregulated carers, as did cases where the local authority was seen to have delayed between holding legal planning meetings or other pre-proceedings meetings, despite parental behaviours not having changed. In some cases the Guardian simply identified a lack of urgency in bringing the case to court.

A cause for celebration?

The report reveals:

approximately 1 in 5 cases where the guardians thought the LA had failed to fully consider alternatives to making the application for a care order;
the majority of all applications (57%) were not fully PLO compliant and this was considered inappropriate in 2/3rds of the non compliant cases;
a significant proportion of parents didn’t get a letter before action (37%) and in the majority of these cases the guardians didn’t think this was in the child’s best interests; and
a significant proportion of the applications (46%) were not made at the right time and 39% were made too late.

Community Care are silent as to what exactly was going wrong in these cases, quoting instead Annie Hudson, the chief executive of The College of Social Work.

“These survey results are encouraging. They testify to the expertise and commitment of local authority social workers and guardians to making sure that children’s needs are at the heart of the complex and necessarily finely balanced family justice system decision making process.”

The use of the words ‘fantastic’ and ‘encouraging’ in response to this report are odd. It seems an attempt to put a weirdly positive spin on some not particularly encouraging statistics. The case law couldn’t be clearer. Care plans for adoption must be subject to strict scrutiny and holistic evaluation of all realistic options. How is this requirement met if the guardian thinks there is a hole in the assessment process? If a kinship placement was available? If the parents should have been referred to other services?

We don’t know what kind of care plans these cases involved. We don’t know the outcomes of the proceedings – did the children go home? Kinship care? Adoption? What was the impact on the children and families if they were the nearly 1 in 5 cases where the guardians thought the care proceedings were initiated without proper consideration of the other options? What’s the impact on the children of being part of the 39% of cases where applications were made ‘too late’ ?

Without answers to these questions, maybe the commentators should row back a little from words such as ‘fantastic’ and ‘encouraging’.

There is a need to consider more fully the impact of judgments such as that in Surrey CC v AB and others in 2014 where there was considerable criticism of the ‘systemic failure’ of the LA and the very damaging impact of delay (para 72) and not keeping an open mind about placement (para 74).

This case was decided in March 2014. So time enough for lessons to be learned?

Are Bonuses paid to Social Workers?

If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

The issue of ‘adoption targets’ and bonuses paid to social workers has for some years now been a feature of the intense feelings of distrust and dislike many feel for professionals in this sector.

We have discussed the issue of ‘adoption targets’ in another post and how it seems that targets set up to speed up finding homes for children in care have been interpreted as pushing social workers to focus on younger, more ‘adoptable’ children in order to improve how they hit these targets. We have argued that the statistics don’t seem to support this but that there is a lack of transparency around this issue which doesn’t aid understanding.

And what does ‘performance’ mean?

Sarah Phillimore writes:

It was always my understanding that social workers were paid a salary – nothing more, nothing less – and that talk of them getting ‘bonuses’ was just more wild conspiracy theorising. There were proposals for a pilot scheme relating to bonus payments in 2009 with a view to rolling out the scheme nationally in 2013 but I don’t know what happened to that. This proposal met with sceptical comment from Community Care and as far as I am aware, it didn’t happen.

A FOI request in 2012 by Shelia Hersom produced this response about payment of bonuses to social workers. The response received did not seem to indicate that additional money was routinely paid to meet ‘targets’.

Social Workers do not receive any other specific non-monetary bonuses or
commissions. However, they may be entitled to a non-cash award, which
would be at the manager s discretion. Non-cash awards can potentially be
awarded to any KCC member of staff and are not exclusive to Social
Workers. Non-cash awards are awarded to individuals or teams as an
immediate recognition of extra effort or one-off successes. The value
of the non-cash award will not exceed £50 for an individual.

It seems that there are problems with both recruiting and retaining social workers and money additional to salary payments may be forthcoming to try and meet these problems:

Market premium payments are made to ensure the retention of experienced
caseholding Social Workers and to keep salary levels competitive within
the District DIAT, Children and Families and Disabled Children s teams in
addition to market premium payments made to Newly Qualified Social Workers
and Social Workers recruited from overseas.

One-off recruitment incentive payments are also made to Principal Social
Workers to encourage new staff to come to the Kent District and Disabled
Children s teams and to Newly Qualified Social Workers in order to offer
incentives similar to other local authorities.

The specific question was asked: ‘Question 9. Are there any targets for forced adoption? If yes please supply details?’ The answer was ‘no’.

Then I was sent a link to this article in the Maidstone and Medway News on September 20th 2014. A council spokesperson said:

Children’s social work is one of the hardest and most demanding roles in the public sector and we need to attract and retain people with talent and experience. This is a nationwide issue, which is why we have to offer attractive incentives to ensure we get the best people we can looking after Kent’s vulnerable children.

Eligibility criteria apply to these payments, which are available to social workers, senior practitioners and team managers in district teams and disabled children’s service, and are dependent on performance.

This makes me very uneasy. Paying social workers bonuses for ‘performance’ immediately raises the question – just what exactly is involved in ‘performing’ well to attract such a bonus?

I have made a Freedom of Information Request to Kent Council asking them to specify how many social workers qualified for this bonus in 2014, how much they were paid and what are the details of such a scheme.

I will update with the response I get. I agree with what Andrew Pack says:

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”

Update – Kent Responds Oct 2014

Dear Ms Phillimore

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to bonus payments to social workers. I am pleased to provide the response below:

I would be grateful for information to answer the following questions:

a) the total bonuses paid to social workers in 2014

The market premium/retention payments made to Social Workers for 2014 was £354,639.35

b) the total number of social workers who qualified for a bonus in 2014

262 Social Workers qualified for the market premium/retention payments

The information is for case-holding Social Workers (Social Worker – Newly Qualified, Social Worker and Senior Practitioner) within Specialist Children’s Services, receiving market premiums and recruitment premiums between 1st January and 25th September 2014.

c) disclosure of the scheme and performance targets that qualifies a social worker for a bonus

Additional Criteria for Market Premium Payment

Social Workers

carrying a full caseload

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

Senior Practitioners and Team Managers

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

But how much further forward does this take me, given that I still don’t know how ‘performance’ is defined?

Reference to ‘performance’ probably means reference to KPIs (key performance indicators), such as number of cases held or closed, number of s47 investigations done. But the lack of transparency does mean that parents from Kent would not be unreasonable to at least feel anxious that decisions on individual cases were taken in order to get the bonus.

I will edit again if I can get any further information.

EDIT – I reply to Kent

On 15th October 2014 I sent the following email:

Thanks for your speedy response to my original query. Is it possible to ask you to expand upon your answer or do I need to raise a fresh request?

I would be grateful if you were able to refer me to any document or written policy that can explain what is meant by ‘performance level – achieving or above’.

This is because many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

EDIT – Kent reply on 23rd October 2014. Lots of words but no information.

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to performance levels. I am pleased to provide the response below:

The reference to ‘Performance level – achieving or above’ in the response to your previous FOI request (copy attached) relates to the process (‘Total Contribution’) which Kent County Council (KCC) uses to measure individual performance throughout each year (April to March). A total contribution assessment takes into account all the elements of an individual’s performance during a work year: their day to day behaviours, the quality and impact of their skills and aptitudes in their job. It applies to all KCC employees employed on the Kent Scheme terms and conditions, including those on the Kent Scheme working in schools.

Further information on the Total Contribution process is set out in the attached guidebook.

So no help there in defining ‘performance’. So I turn to the guidebook.

The guidebook sets out the Four Key Elements of Total Contribution.

Assessment Category	Elements
Objectives and Accountabilities	Delivery to Action Plan Effectiveness in job role on a day to day basis Targets Quality Standards Budget Control Customer Feedback Peer group/360 degree feedback
Values and behaviours	Continuously improving in terms of how the job is done Demonstrating enhanced delivery through behaviour Living our values and behaviours
Wider Contribution	Contributing to team, Project work outside the normal job Participation in KCC work activities not directly related to job role
Personal Development	Achievement of Development Plan Application of Development Attainment and use of required skills Qualifications attained

What is that word I can see in the top right hand box? The ominous word ‘targets’

So what ‘targets’ do they mean? Back to the guidebook. They don’t seem to be identified – or rather, the individual employee has responsiblity for selecting their own ‘targets’.

Check and adjust your targets throughout the year according to developments at work. Your targets are dynamic and should reflect what you achieve throughout the year so they need to change when changes occur.

Make sure you get at least one opportunity, mid year, to talk about progress against your targets with your manager. Ideally 1:1 meetings, or supervision sessions will also help you keep a tab on your progress.

Ensure that the development needs you identified are put in to action.

Cash benefits get further mention:

Cash awards are intended to be used throughout the year to reward specific actions. They can also be considered as part of rewarding the overall Total Contribution but managers need to ensure that there is no double counting of an individual’s contribution and remind themselves of any recognition given or payments made earlier in the year. They should not be used as an alternative to making the proper TCP assessment or to supplement the corporately agreed performance or general award.

So what do I learn from 40 pages of rather dense management speak? That ‘targets’ are important in order to measure whether or not employees are performing sufficiently well to be rewarded on top of their salaries. I learn that these ‘targets’ are dynamic and ‘need to change when changes occur’. But there is no clarity as to what possible areas or achievements these ‘targets’ relate.

While I am grateful for Kent’s speedy response to my queries, I can’t help but be disappointed by the nature of their reply. It’s little wonder the proponents of the forced adoption debate gain so much traction when a simple question gets a 40 page booklet in reply, that is full of lovely words but very little information.

Remember my earlier question? … many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

My question is unanswered and I am left with a growing sense of irritation and frustation – this debate is important. The way the State intereferes in the lives of individuals has huge ramifications in so many areas. Due process matters. This is an unnecessarily opaque response to an important question. We are all entitled to as much clarity and honesty as possible about what is done in our name, with our taxes. If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

‘Targets’ defined in 2012 FOI response

The 2012 FOI request lead to the provision of this information regarding ‘targets’ that are used to monitor performance in Specialist Children’s Services and are reported at a District level on a monthly basis. Information relating to performance is available at Social Worker level from which the performance of individual Social Workers can be measured.

HOW MUCH ARE WE DEALING WITH ?	Target
Number of CAFs completed per 10,000 population under 18	58.9
Number of TAFs per 10,000 population under 18	67.7
Number of Referrals per 10,000 population under 18	533.1
NI 68 – Percentage of Referrals going on to Initial Assessment	65.0%
Number of Initial Assessments per 10,000 population under 18	415.4
Number of Core Assessments per 10,000 population under 18	170.6
Number of S47 Investigations per 10,000 population under 18	109.2
Percentage of S47 Investigations proceeding to Initial CP Conference	70.0%
Number of Initial CP Conferences per 10,000 population under 18	44.3
Number of CIN per 10,000 population under 18 (includes CP and LAC)	290.0
Numbers of Children with a CP Plan per 10,000 population under 18	40.0
Children looked after per 10,000 population aged under 18	47
Number of Looked After Children with a CP plan.	30
Numbers of Unallocated Cases for over 28 days (Business)	100

HOW LONG IS IT TAKING US ?	Target
Percentage of TAFs held within one calendar month of CAF upload	70%
NI 59 – Percentage of IA’s for children’s social care carried out within 7 working days of referral	69.0%
Initial Assessments in progress outside of timescale	200
(NI 60) – Percentage of Core Assessments that were carried out within timescale	80.4%
Core Assessments in progress outside of timescale	100
NI 67 – Child protection cases which were reviewed within required timescales	97.9%
NI 66 – Looked after children cases which were reviewed within required timescales	94.6%

HOW WELL ARE WE DOING IT ?	Target
Percentage of Case File Audits judged adequate or better	85%
Percentage of open cases with Ethnicity recorded	95%
Percentage of Referrals where the Referrer is informed of the outcome	80%
Percentage of Children seen at Initial Assessment	90%
Percentage of Children seen at Core Assessment	90%
Percentage of Children seen at Section 47 enquiry	90%
Percentage of Children with a CP plan where all statutory visits are within timescale	90%
Percentage of Looked After Children where all statutory visits are within timescale	90%
Percentage of Looked After Children aged 5 to 16 with a Personal Education Plan (PEP)	95%
Participation at Looked After Children Reviews	95%
Children subject to a CP Plan not allocated to a Qualified Social Worker	0
Looked After Children not allocated to a Qualified Social Worker	5

ARE WE ACHIEVING GOOD OUTCOMES ?	Target
Percentage of TAFs closed where outcomes achieved or closed to single agency support	90%
Percentage of TAFs closed because the case has escalated to Children’s Social Services	7%
Percentage of referrals with a previous referral within 3 months	6%
Percentage of referrals with a previous referral within 12 months	23.0%
NI 65 – Percentage of children becoming the subject of a CP Plan for a second or subsequent time	13.7%
NI 64 – Child Protection Plans lasting 2 years or more at the point of de-registration	6.0%
Percentage of Current CP Plans lasting 18 months or more	7.0%
NI 62 – LAC Placement Stability: 3 or more moves in the last 12 months	10.1%
NI 63 – LAC Placement Stability: Same placement for last 2 years	67.5%
LAC Dental and Health assessments held within required timescale	85.0%
Percentage of Children Adopted	11%

ARE WE SUPPORTING OUR STAFF ?	Target
Percentage of caseholding posts unfilled (100% – QSW inc Agency Posts)	10%
Percentage of caseholding posts filled by agency staff (Agency Staff ÷ Establishment)	10%
Percentage of caseholding posts filled by Qualified Social Workers (QSW posts exc Agency ÷ Establishment)	90%
Average Caseloads of social workers in fieldwork teams	20

Complaints against a public body – a parent’s advice and perspective

We are grateful for the comments of one of our readers ‘C’ who has not had a good experience of social work intervention, nor found that his complaint was dealt with either quickly or competently. He eventually took his complaint to the Local Government Ombudsman and found their response unhelpful. What happens when you have reached the end of the complaints process but you still don’t think you have achieved resolution of your complaint?

For discussion of the various legal remedies against mistakes or poor performance of a public body, see this post.

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

One of the greatest inhibitors in terms of application for Judicial Review is that the decision must almost always be challenged within 90 days – otherwise the judge may rule you out of time.

Individual social workers or hospital professionals registered with Health and Care Professions Council can be investigated by them for malpractice. All members have a duty to follow a code of ethics. So it is worth pursuing things there.

With regard to Freedom Of Information requests, I would discuss the best way forward here, with the Information Commissioner’s Office. There are exemptions to your receiving personal information but these can be considered and overruled by the (ICO).

If names were altered and logged inaccurately, etc. then these are breaches of the Data Protection Act which the ICO are supposed to police. They are toothless and pettifogging… but if you persist and manage to drill your way through to the upper levels of management, you can get a more sympathetic ear as they are interested in any cases of flagrant data injustice which might end up in them getting stronger powers in data protection from the government. You can sometimes get access to Data Subject Access Request information that is exempted, if the data may be required for future legal proceedings.

Contact the ICO on 0303 123 1113 and open a case with them. Press them to investigate it. Copy everything to your MP. [The professionals] will not want to appear uncompliant in the eyes of the ICO as the ICO is able to hand out hefty fines to corporate bodies. Force them to acknowledge your issue.

Do your best to be clear and concise in your dealings with these people. Remember they are dealing with this stuff all day, every day… and have limited patience for your emotion. Even though of course your outrage is entirely justified, it may just become an extra burden for them – and thus hamper your progress.

Why do things go so wrong?

In terms of [descrbing professionals as] lying, cheating and betraying – I realise that it is more likely unconscious, systematised behaviour and so defining it as lying, cheating and betraying may be pejorative. It is inept in the sense that a broken food processer throws food all over the room. The result is a mess: the solution is to fix the processor. Or to throw it out and go back to chewing.

Isn’t simple human error still misfeasance, when those errors represent breaches in frameworks that they are supposed to comprehend and follow?

I see how chronic ineptness can be portrayed as simple human error, and is not necessarily ‘conscious’. Mind you, being in a stupor is no defence when driving – so it is difficult to appreciate why it should be admissible when administering the law..

And what are the consequences?

The experience of ‘C’ has been that the available remedies are either subject to strict timescales or depend on being able to prove bad faith on the part of professionals, which is difficult to do.

This is a steep track to negotiate with limited funds. It ain’t justice as anyone unaccustomed to bureaucratic process and unlimited time to play with other peoples lives and money, would recognise.

And the consequences are the destruction of any constructive professional relationship and a sense of despair for the parents left without a remedy.

I think bitterness at injustice and lack of closure makes one deaf to rational argument. It is somewhat remarkable that [some parents are] still exploring legal routes, and not investigating home bomb-making, or kidnapping strategies…

As for being a victim, the unfortunate truth of post-capitalism, is everywhere that you pay with your attention. In my complaint, I have helped justify their existence, improved their systems of control, and helped guarantee their salaries. There is no comfort in that.

My heart goes out to [families in a similar position] – and I fear for them. They seem distorted by unassuageable pain. Whatever the justice of their case, or the LA’s actions, the fruits are only bitterness and despair for everyone except those employed to purvey the misery, and uphold the myth of adversarial justice.

Personality Disorder

Personality disorders are conditions in which an individual differs significantly from an average person, in terms of how they think, perceive, feel or relate to others.

NHS Website

We agree that sadly, there remains stigma in society generally against people with mental health issues. But many people who have a diagnosed mental illness are good parents. If you are worried about how your mental health will be perceived in care proceedings, you might be interested in our post about parents with mental health difficulties. You might also find something helpful in our links and resources page.

Until fairly recently, there were a limited number of identified ‘mental illnesses’ which were clearly defined and considered quite extreme. There has been a shift towards recognising as mental illnesses some less extreme and more subjectively defined ‘disorders’. There has been an increase in identified mental disorders from from 106 in 1952, to 297 in 1994.

Debate over why and how we are diagnosed with a mental illness

This causes concern to some:

Such subjective “disordering” of what some might think “normal” behaviour already results in it being possible to diagnose more than a quarter of the population with some form of personality disorder and be at risk of losing their children…

The emphasis on ‘diagnosing’ a particular problem may mean we lose sight of what is happening for the person who is the subject of the diagnosis. As Dr Lucy Johnston said:

In essence, instead of asking ‘What is wrong with you?’, we need to ask ‘What has happened to you?’,” … Once we know that, we can draw on psychological evidence to show how life events and the sense that people make of them have led to the current difficulties.

However, its important to understand the implications of being diagnosed with a personality disorder – they are often a feature of care proceedings as they can have a serious negative impact on how people parent.

It is clear that many parents find it difficult to understand what is meant by a ‘personality disorder’ or what they can do to change the way they think and act to make their lives easier and better.

What is a personality disorder?

‘Personality’ is the word to describe what makes us who we are – how we think, feel and behave. Personalities are usually developed by the time we are in our teens, therefore if someone is going to have problems with their personality, it often becomes noticeable around this time.

You may be told you have a ‘personality disorder’ if you have ways of thinking and acting that are getting in the way of you living your life happily. This is because the way you react to negative feelings or difficult times in your life, can make it difficult for you to form healthy and happy relationships with those close to you – such as your partner or your children.

Dr George Stein, a Consultant Psychiatrist at the Priory Hospital describes it in this way:

We all have a personality and some of us are odd; for example an eccentric and obsessional barrister might be considered ‘an abnormal personality’ in a statistical sense but this is not the same as a personality disorder. Schneider defined personality disorder as ‘an abnormal personality who brings harm to themselves and to others by virtue of their personality’.

They are a common mental health condition – about 1 in 20 adults in England is estimated to have a personality disorder. They can range in seriousness from mild to moderate to severe. A mild personality disorder may only cause you problems in times of particular stress and worry, and otherwise you may find little or no impact on your day to day life.

The Royal College of Psychiatrists describes it in this way:

For whatever reason, parts of your personality can develop in ways that make it difficult for you to live with yourself and/or with other people. You don’t seem to be able to learn from the things that happen to you. You find that you can’t change the bits of your personality (traits) that cause the problems. These traits, although they are part of who you are, just go on making life difficult for you – and often for other people as well.

Other people will often have noticed these traits from your childhood and early teens. For example, you may find it difficult to:

make or keep close relationships

get on with people at work

get on with friends and family

keep out of trouble

control your feelings or behaviour

listen to other people

Why do some people develop a personality disorder?

Probably both genetics and environment have something to do with this. If you had to grow up in a stressful or abusive environment as a child this may make you more vulnerable to developing a personality disorder later in life and this vulnerability could be increased by genetic factors.

Types of personality disorder

There are a number of different personality disorders . They are grouped into three ‘clusters’ according to the different traits people demonstrate.

Cluster A Schizoid/paranoid – people who are often isolated and withdrawn but not psychotic;
Cluster B Anti-scocial/borderline – more extroverted types who may be involved in crime or are emotionally unstable;
Cluster C Avoidant/anxious/dependent – not often seen in care proceedings.

Those whose personality disorder falls within Cluster B, such as those with borderline personality disorder (BPD), are at serious risk of losing their children in care proceedings. This is because the traits that identify them as suffering a BPD, such as explosive reactions to others, often mean they lack support from family or a partner.

BPD is not a particularly helpful label – it got its name because it used to be thought that people with this disorder were on the ‘borderline’ between neurosis (mentally distressed but aware of reality) and psychosis (finds it hard to distinguish reality and delusion).

Now it is agreed that a more helpful way of understanding borderline personality disorder is to look at it as a condition that causes problems with the way people feel and how they interact with others.

What’s the impact of a personality disorder on parenting?

Parents have described having a PD as very challenging, not just for them but for anyone they live or work with. Life can seem like a ‘battle’ everyday and people can feel empty and worthless, rejecting other people before they get rejected.

Children need safe environments from an early age to learn how to handle their own emotions. If a child doesn’t get that, he or she is more likely to grow up and develop abnormal patterns of behaviour. A study of prisoners with personality disorders showed that they reported adverse childhood experiences and victimisation more frequently than those who did not have a personality disorder (see the Journal of Forensic Psychiatry and Psychology vol 19 Issue 4 Dec 2008).

Minna Daum of the Anna Freud Centre described the impact on parenting in this way:

‘Personality disorder is a disorder of social relationships…Parents have had traumatic backgrounds where they have not been held in mind. They therefore feel unsafe in all their relationships. It is therefore a HUGE challenge to become a parent and enter a relationship that they cannot duck out of, or become angry and aggressive in’

An adult’s personality is a key aspect of parenting because your personality impacts on how you regulate how you are feeling and how you handle relationships with other people. ‘Good enough’ parenting is likely to requires the following ‘psychological capacities’ (Adshead, 2015):

being able to manage your own anxiety without becoming angry or frightened.
the ability to plan and think ahead
the ability to respond to another person in distress with empahty
the ability to work with others who are also involved with your child’s welfare – schools, other parents etc
the ability to ask for help
the ability to tolerate negative emotions without taking impulsive action or assuming the worst
a sense of humour and ability to find enjoyment in life.

What’s the impact of personality disorder on care proceedings?

Impact on working with professionals

The problems that parents with PD can have interacting with people can then be made worse if they have to deal with social workers who don’t know much about mental illness. If the professionals lack understanding, the parents can feel ‘put on trial’ – which is likely to make parents feel frightened, increase their defensiveness and block understanding and a good working relationship. Warmth and compassion are good traits for a professional to demonstrate when trying to build a relationship with a parent who has a PD.

One of our contributors describes it in this way:

Many people with a diagnosis of personality disorder manage well as parents. However, some parents with diagnoses of personality disorder do need some help. Most people with a diagnosis of personality disorder have a history of childhood abuse or neglect, and some may therefore need guidance in understanding how to keep their own children safe and cared for. Many people with a diagnosis of personality disorder struggle to manage relationships and emotions, and some may therefore need support in responding to the behaviour of their children. Some people with a diagnosis of personality disorder cope with stress in self-destructive ways such as by self-harm, substance abuse, eating problems or sexual risk-taking, and these people may need help in ensuring that their children are not affected by their behaviour. It is this latter category – those parents who are harming themselves, and whose children are witnessing them harming themselves or whose unborn children are affected by them harming themselves – who are most likely to attract the concern of professionals.

However, before allowing a Social Worker to remove a child from a parent with a personality disorder, the court must ensure that everything possible has been done to help and support the parent. In the past, personality disorders were regarded as ‘untreatable’ and some people with diagnoses of personality disorder may still be told they are ‘untreatable’: however, this attitude is now recognised as discriminatory and does not remove from statutory services the legal obligation to try and help. There is help and support available for people with diagnoses of personality disorder: treatments such as mentalisation-based therapy (MBT), dialectic behaviour therapy (DBT), cognitive analytic therapy (CAT) and therapeutic communities have been demonstrated as reasonably effective. Therefore, unless a person with a diagnosis of personality disorder is refusing all help, their Social Worker must do everything possible to find them the support they need before considering whether to take their children away.

These kind of cases may be ones where it is ‘necessary’ to instruct an expert to help the court understand what kind of help is available, how long it will take and how much it will cost. See section 13 of the Children and Families Act 2014 which determines when the court can seek an expert report.

Impact on timescales – what happens in the care proceedings if I need treatment for PD?

It used to be thought that personality disorders couldn’t be treated and that most people would see an improvement in how they functioned as they got older. However, doctors now believe that personality disorders can be treated by either ‘talking therapies’ or medication.

People with personality disorders need help to change their maladaptive patterns of behaviour and to develop new ways of coping with stress. Often, acting impulsively is a problem. Dialectical Behavioural Therapy is recommended by the Department of Health; it’s a type of cognitive behavioural therapy which teaches skills to cope with stress, regulate emotions and improve relationships with others.

For further discussion about ways to treat BPD, visit the NHS website.

The big problem when personality disorders are part of care proceedings is that the treatment on offer might not be easily accessible via the NHS or it might be argued that successful treatment would take too long and your child cannot wait for you to complete the treatment. It is therefore very important to establish as soon as you can what is the nature and seriousness of your personality disorder and what treatment is available.

Funding for treatment is often a problem. There is a helpful article here discussing funding options either through the NHS or the LA.

The Haven Project identified the necessary building blocks to engage with and help parents with PD.

a sense of safety and building trust
feeling cared for
a sense of belonging and community
learning boundaries
containing experiences and developing skills
identifying hopes, dreams and goals
achievements
transitional recovery

Anti depressants may help some people, particularly those with ‘explosive’ traits.

Further information, help and support

Association for Family Therapy and Systemic Practice – members work with children, young people and adults, couples, families and individuals, enabling them to build on strengths and understandings and find ways forward in their lives.

Emergence – personality disorder website – aims to make life changing differences for everyone affected by personality disorders through education and support.

Counselling Directory- find a counsellor or psychotherapist near you.

Mind – mental health charity, providing advice and support to empower anyone experiencing a mental health problem. Campaigns to improve services, raise awareness and promote understanding.

Rethink Mental Illness – operating since 1972, helping people living with conditions like schizophrenia, bipolar disorder, personality disorders and more to recover a better quality of life.

Parental Mental Health and Child Welfare Network [2010] A report ‘Living with Personality Disorders, Supporting Better Parenting’.

on 11th January 2018 the British Psychological Society welcomed a new consensus statement about personality disorders – ‘People with complex mental health difficulties who are diagnosed with a personality disorder

The BPS commented:

The Society is supportive of the joint professional and expert by experience call to action to stop the exclusion of people who have been diagnosed, or would be diagnosed, with personality disorder from mental health services and to reduce the associated health and social inequalities and disadvantages that lead to a much lower life expectancy.

Of equal importance is the recognition of the research that for many people it is social inequalities, discrimination and adverse childhood experiences that are the main causal factors in (cause) the difficulties they experience.

Special Guardianship Orders

This order makes someone a child’s ‘special guardian’.

The law concerning special guardians can be found at:

section 14A-F of the Children Act 1989,
the Special Guardianship Regulations 2005 as amended in 2016
and the Special Guardianship Guidance from 2005. The guidance does not have the same legal force as a statute, but the courts will expect LAs to comply with it, unless there are exceptional circumstances.
Guidance published in June 2020 – see Best Practice Guidance at Appendix E.

What is a special guardian?

The Adoption and Children Act 2002 amended section 14 of the Children Act 1989 to create special guardianship orders (SGO). These are a ‘half way house’ between a Child Arrangements Order that provides a child should live with someone (what used to be called a ‘residence order’) and adoption, which severs all legal ties between a child and his birth family.

The aim behind a SGO is that it will give a child permanence and stability but also allow him to retain links to his birth family, for example in situations where it might not be appropriate to get an adoption order. For example, if a child is cared for by a close relative such as a grandmother, then adoption doesn’t make much sense as his grandmother would legally become his ‘mother’.

However, special guardianship is not intended to be only used for relatives; foster carers should also be considered as potential special guardians. See Re I (Adoption: Appeal: Special Guardianship [2012] Fam Law 1461.

The court in S (a child) [2007] EWCA Civ 54 discussed the government’s motivation behind creating SGOs at paragraph 11 of its judgment:

In December 2000, the government published a White Paper entitled Adoption: a new approach (Cm 5017) (the White Paper). This followed the fundamental review of adoption policy and practice initiated by the Prime Minister earlier in the same year. The executive summary expressed the government’s belief that “more can and should be done to promote the wider use of adoption”, a sentiment repeated in paragraph 1.13 of the White Paper itself. At the same time, the White Paper recognised that adoption was not always appropriate for children who cannot return to their birth parents. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the White Paper in the following terms:

–
‘Special guardianship’
5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.
5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.
5.10 The Government will legislate to create this new option, which could be called ‘special guardianship’. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: –

give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;
provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
preserve the legal link between the child or young person and their birth family;
be accompanied by proper access to a full range of support services including, where appropriate, financial support.

There has been considerable evolution in the approach of the courts to identifying and assessing Special Guardians – particular problems have arisen when dealing with very young babies, who have no pre-existing relationship with the proposed Special Guardians, or when cases were ‘rushed’ and some SGOS were made when tragically it was not safe to do so.

Who can be a special guardian?

When there is a question mark over parents’ ability to care for their children in the long term, best practice is that the local authority considers if there are any ‘connected people’ who could look after the child instead, i.e. family or friends. The local authority should undertake an initial family and friends care assessment, or ‘viability assessment’

This can be complicated, particularly if the parents have a wide extended family, who live in other local authority areas or even abroad. There shouldn’t be a ‘cap’ put on the number of people who put themselves forward, but equally, everyone has to be realistic. Someone who is already caring for a large number of children or has challenges of their own to meet, may not be a realistic option.

Anyone who wants to to apply to be a Special Guardian, has to be 18 or over and you can’t be the child’s parent. Some people can make an application for an SGO without the court’s permission, others will need leave from the court to make the application.

You don’t need permission to apply if:

you are the guardian of the child;
you are named in a a child arrangements order as a person with whom the child lives;
a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
a relative with whom the child has lived for a period of at least one year immediately preceding the application.
if the child is in care and the local authority agrees you should make the application

How do I become a special guardian?

Your position may be very different depending on whether or not you have the backing of the local authority. You won’t get automatic legal aid to be represented in care proceedings but usually local authorities are asked by the court to pay for you to have a few hours of legal advice to explain your options. If the local authority doesn’t support you, you will have to apply to the court for permission to make an application,

You have to give three months notice of your intention to apply to the local authority which is looking after the child or the local authority where you live if the child isn’t in care. The local authority then have to prepare a special guardianship report which will examine your suitability to be a special guardian. The court can’t make an SGO without this report.

When deciding whether or not to make an SGO the court will consider that the child’s welfare is paramount and it will look at the welfare checklist in section 1(3) of the Children Act 1989.

There is a ‘residual power’ of the court to make a SGO ‘of its own motion’ (i.e. without any application before it) under section 14A(6)(b) of the Act but the Court of Appeal in P-S (Children) [2018] EWCA Civ 1407-were clear that it ‘should not be the normal or default process’. This is because someone who doesn’t have the consent of the LA needs more scrutiny. The court said at para 53:

In the absence of the local authority’s consent, the grandparents would have been able to apply for leave to make an application under section 10(9) of the 1989 Act where the factors to be considered by the court are specified. In a case where the local authority does not consent the leave application is an important protection for the child and the child’s parents. It is not a rubber stamp. Where leave is granted, an appropriate balance is struck between the applicants, the child, the child’s parents and the local authority. It is relatively common to find that local authorities who give consent to an application being made, that is who support the application on the merits, will help fund the applicant by providing representation. That happened in this case when the matter came on appeal and after a case management indication to that effect was given by this court. It ought to have happened earlier.

This case is also important because it looked at the issue of providing legal advice to people who might be thinking about applying to be a Special Guardian. This case saw a successful appeal against final care orders in a case where the Judge had been worried that the child had never lived with the proposed Special Guardians. It sets out general guidance on the approach to be taken to consideration of Special Guardians and the making of SGOs within care proceedings. It is very important that proposed Special Guardians get access to proper legal advice about their options. The Court called for more authoritative guidance to sit alongside the regulations. This has now been provided by the June 2020 report of the Public Law Working Group – see below for discussion.

What does being a special guardian mean in practice?

Section 14C confirms that a special guardian is entitled ‘to exercise parental responsibility to the exclusion of any other person with parental repsonsibility for the child’.

But that doesn’t mean the special guardian can just do as he or she likes. Under section 14C, if any law requires the consent of more than one person with parental responsibility the special guardian can’t ignore that. Nor can the special guardian give the child a new surname or take him out of the country for more than three months if the parents don’t consent.

Becoming a child’s Special Guardian is clearly a very significant step; its going to impact you financially and possibly your relationships with other family members.

The Best Practice Guidance (see below) says it is important for Special Guardians to understand the following:

The order will remain in force until the child reaches 18;
they will have parental responsibility for the child – this means all aspects of the child’s care including decision-making about the child’s day-to-day and long-term welfare, health and education and the provision of the resources that are needed to enable this to happen; (
their position within the family will change as they take on the responsibility for both the day-to-day and long-term parenting of the child; this may result in strong feelings being expressed by the birth parents and other family members towards the SG particularly during any contact they have after an order is made;
when an order is made and the child was previously looked after, that the SG will be entitled to an assessment of their own and the child’s support needs. This right to an assessment will continue until the child reaches 18;
following an assessment of support needs, it is at the discretion of the local authority as to whether any services will be provided, balanced against any eligibility requirements as set in law: this includes housing and financial services;
if the child was not previously looked after before the order was made, the eligibility for an assessment of support needs is at the discretion of the local authority.

Should a supervision order be made at the same time?

The Best Practice Guidance from 2020 (see below) does not think this is a good idea.

The purpose of an SGO is to provide a firm foundation on which to build a lifelong permanent relationship between the child and the carer. A supervision order should not need to be used as a vehicle by which support and services are provided by the local authority. All support and services to be provided to the SG and to the child by the local authority or other organisations should be set out in the SGSP which should be attached as an appendix to the order. The cases where it would be appropriate or necessary to make a supervision order alongside an SGO will be very small in number. The issues that are intended to be addressed in the making of a supervision order are most likely to be achieved through the process as set out above.

How can I vary or discharge a special guardianship order?

This is dealt with at section 14D of the Children Act. Parents will have to get the court’s permission before making this application and the court won’t give this permission unless there has been a ‘significant change’ in circumstances since the order was made.

However, not too much weight should be put on the use of the word ‘significant’ . In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided when considering an application for leave to discharge a SGO, courts should take the same approach as they took in applications for leave to revoke placement orders and that the guidance in M v Warwickshire County Council [2007] should be followed.

Applications to revoke placement orders only require a ‘change’ in circumstances and various authorities have commented that the test should not be set too high; parents should not be discouraged from trying to improve their situation.

Applying for leave to discharge/vary is a two stage process; if you cannot show a change in circumstances, the court will not give you permission to make the application and the matter ends there. however, if you can show a relevant change, the court will then consider if you should go on to make the application, looking at the child’s welfare and whether your application has a real prospect of success. Therefore you will need to show a change of circumstances that is relevant to the particular facts of your case and is the kind of change that will open the door to the court considering to allow you permission to apply to discharge.

For example, if your child was removed because you were in a violent relationship, have you taken steps to understand the risks posed by such relationships, by attending the Freedom Programme or similar intervention.

What support do special guardians get?

Under section 14F of the Children Act, the LA must make provision for special guardian support services such as counselling, advice and information. Under the Special Guardianship Regulations, the LA must provide appropriate financial support and make an assessment of the relevant needs. It will consider the fostering allowance as a starting point and may make appropriate adjustments to that. See R (TT) v London Borough of Merton [2012] EWCA 2055.

Concern over the increase in numbers of special guardians.

TACT, the largest charity in the UK which specialises in providing fostering and adoption services, was concerned to note the sharp increase in numbers of special guardianship orders which were revealed by statistics from the Department of Education in 2014. Concerns have also been raised by Coram/BAAF.

Those statistics show that the use of special guardianship orders rose in England from 2,770 in 2013 to 3,330 in 2014. But in 2010 there were only 1,290 orders which is an increase by 2014 of 158%.

TACT CEO Andy Elvin said:

SGOs were introduced to allow young people stability and permanence. We are, however, worried that this dramatic rise indicates that they are being increasingly used inappropriately. TACT is aware of foster carers being asked to consider special guardianship shortly after a placement is made, or placements being made only on condition that an SGO is part of the care plan. SGOs should only be considered when the time is right for carers and the young person.

Amended Regulations 2016

Throughout 2015 these concerns about the increase of SGOs grew; see the note from CAFCASS in October 2015 below. The fear was that children were being placed at risk if subject to an SGO without proper consideration of the long term viability of that placement.

These concerns lead to amended Special Guardian Regulations in February 2016. Now assessments of capacity to be Special Guardian include:

their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;

their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;

their ability and suitability to bring up the child until the child reaches the age of eighteen;”.

Concerns from CAFCASS October 2015

THE ASSESSMENT OF SPECIAL GUARDIANS AS THE PREFERRED PERMANENCE OPTION FOR CHILDREN IN CARE PROCEEDINGS APPLICATIONS
Intended audience: Local authorities, Cafcass, judiciary, HMCTS, LSCB’s
1. Since their introduction, Special Guardianship Orders have been made in a wide variety of situations – much wider than the original legislation anticipated. The rate of increase in their use has accelerated in the past year, especially for infants. Many practitioners have expressed concern about the impact on the processes used and the future outcomes for children.
2. Whilst Special Guardianship is a positive option for many children, we are writing this note out of concern about a number of cases where we believe children have been placed at risk through a Special Guardianship Order being made without sufficient consideration of the placement’s long-term viability. Many of these placements have been arranged at a late stage in care proceedings without adequate time to carry out a suitability report to safe minimum standards. Sometimes it is clear the Special Guardianship Order process and sign off has been undertaken to ensure the case is completed within the statutory 26 week timescale. Our note is borne out of concern that this type of placement is not taking into sufficient account the requisite long-term viability for the child and, as a direct result, avoidably increases the risk of placement breakdown or the risk of immediate and significant harm.
3. Our guidance is written for learning and prevention purposes. It is clear that many Special Guardianship Orders are being made positively as a result of intensive family finding within the child’s kinship care network. When Local Authorities have been able to carry out a thorough analysis of the strengths within a family prior to or in the early stages of care proceedings, a Special Guardianship Order can be a positive permanence option. However, for reasons of risk and speed, or simply as a result of an inability to engage effectively with a family network, it is not always possible to explore this option to the right depth and at the right time. It is our view that Special Guardianship remains an important permanence option that can be a creative way of resolving a wide range of needs but the basic safeguards routinely applied to other forms of permanence should be followed with every Special Guardianship assessment and court process.
4. Where an SGO is being considered at a late stage in proceedings, care must be taken to ensure that minimum standards are complied with and that the suitability report covers the issues sufficiently. This is just as crucial if professional concerns relate to the long term capacity of the proposed special guardians to parent well, as it is if the child has neither lived with the proposed special guardian/s nor has a relationship with or attachment to the proposed special guardian.
5. If such a late assessment means that the 26 week limit cannot be complied with, this should be clearly presented to the court as a legitimate reason for assigning the case to the non-standard track.
6. All assessments/suitability reports, whether started and finished pre-proceedings or whether started and finished during proceedings, should comply with the Schedule set out in Regulation 21 of the Special Guardianship Regulations 2005 (2005 No.1109). The threshold for a Special Guardianship Order in social work terms is that there is an evidence base that neither a co-parenting agreement, nor a s8 Order under the Child Arrangements Programme, will guarantee the child sufficient security and stability throughout their childhood. Conversely, the social work assessment and the children’s guardian’s analysis must demonstrate that the special guardian can meet the needs of the child in question including, where appropriate, recovery from the trauma associated with severe abuse or neglect if that has been the child’s prior lived experience.
7. It is important not to regard a Special Guardianship Order as a default option because of the higher hurdle of an adoption recommendation – ‘the nothing else will do’ test, or ‘last resort’ concept. Care must be taken to provide a balanced assessment of the special guardian, rather than over-emphasising untested positives.
8. In short, Special Guardianship Orders should neither be recommended nor endorsed nor determined expediently where the test and bar for a carer to pass is lower than that for a permanent placement outside the family, whatever the proposed legal framework for that placement. A Special Guardianship Order is a valid and compelling permanence option for many children but fundamentally the principles underpinning a Special Guardianship assessment and care plan should be no less than the test and standards for other forms of permanence outside the child’s immediate family. If practitioners are unable to complete assessment to the standard demanded by both the regulations and the complexity of the case within the timescale proposed by the courts, this point should be clearly made. Social workers, children’s guardians and lawyers must assert themselves before the court if they believe that extra time is needed to complete an assessment so the child in question can be properly safeguarded.
9. No child should be placed in the care of a Special Guardian without DBS and other necessary checks being carried out.
10. Our note applies to all practitioners in the case. We are not singling any profession or agency out for criticism over and above any other but this has become a real problem and a real risk for the children concerned.
Andrew Webb (ADCS) Anthony Douglas (Cafcass)

Reform Proposals

A review of the law around SGOs was commissioned by the Nuffield Family Justice Observatory in response to the Court of Appeal’s call for authoritative, evidence-based guidance for the use of SGOs. It was led by Dr John Simmonds from CoramBAAF and Professor Judith Harwin from Lancaster University. The review was published in August 2019 and called for significant changes:

Increase focus on working with family members who might become the child’s special guardian before care proceedings commence.
A statutory minimum amount of preparation and training for prospective special guardians.
Ensuring that prospective special guardians have direct experience of caring for the child before making a Special Guardianship Order, evidenced by a thorough assessment of suitability.
Ensure that support services are available locally and align with entitlements for adopters and foster carers such as parental leave, housing priority and financial support.
Address the glaring gap in research on children and young people’s views and experiences of special guardianship.
Undertake research to address the challenge of how best to ensure safe and positive contact with birth parents and the wider family.

Final report of the Public Law Working Group

This was delivered in June 2020 and made four recommendations for immediate change at page 12:

more robust and more comprehensive special guardianship assessments and special guardianship support plans, including a renewed emphasis on (1) the child-special guardian relationship, (2) special guardians caring for children on an interim basis pre-final decision and (3) the provision of support services;
better preparation and training for special guardians;
reduction in the use of supervision orders with special guardianship orders;
renewed emphasis on parental contact

There were also four recommendations for longer term change

on-going review of the statutory framework;
further analysis and enquiry into (1) review of the fostering regulations, (2) the possibility of interim special guardianship orders, (3) further duties on local authorities to identify potential carers, (4) the need for greater support for special guardians;
a review of public funding for proposed special guardians;
effective pre-proceedings work and the use of the FRG’s Initial Family and Friends Care Assessment: A good practice guide (2017)

Appendix E sets out Best Practice Guidance, which the report recommends is implemented immediately. This was endorsed by the President of the Family Division.

This incorporates interim guidance specifically to address the lawful extension of care proceedings beyond 26 weeks when special guardianship is being considered as an option.

When will the court agree adoption is necessary?

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

Introduction and summary

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

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

In this post I consider the relevant case law which the court must have in mind when considering making a final care order which has a plan for adoption. The case of Re B-S in 2013 caused a stir amongst lawyers and social workers and was interpreted by some as changing the law by making it more difficult to convince a court to make an adoption order. The President of the Family Division clarified in the case of Re R in 2014 that his judgment in Re B-S had not intended to change the law and did NOT change the law. Re W in 2016 provided further refinement of the ‘nothing else will test’ and confirmed it is not the right test when the court has to decide between two appropriate placements.

I discuss these cases in more detail below.

Remember that Care proceedings are NOT adoption proceedings

The relevance of the 26 week timetable.

The first and very important point to make is that care proceedings are not adoption proceedings. Before a child can be adopted, The LA has to obtain a placement order. This is often applied for at the same time as a final care order.

BUT note section 22 of the Adoption and Children Act 2002 (ACA) below; the LA can apply for a placement order if a child is accommodated under section 20 of the Children Act. This does raise some legitimate concerns about ‘adoption by stealth’ which I discuss further here.

Section 21 of the ACA says the court cannot make a placement order unless:

the child is subject to a care order OR
the court is satisfied that the conditions in section 31(2) of the Children Act 1989 are met OR
the child has no parent or guardian

The conditions set out in section 31(2) are those required to exist before a court can make a care or supervision order:

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; or
- the child’s being beyond parental control.

Section 22 of the ACA sets out that a local authority must apply to the court for a placement order in respect of a child if:

the child is placed for adoption by them or is being provided with accommodation by them,
no adoption agency is authorised to place the child for adoption,
the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
the authority are satisfied that the child ought to be placed for adoption.

This a high threshold – for obvious reasons. Taking children away from their families is recognised as the most serious interference with people’s family and private lives; it has life long consequences for all concerned.

So if anyone tells you simply that a social worker will take your child and have him adopted, this is not an accurate description of the necessary process.

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

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

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

See further para 49 of Re B-S:

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

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

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

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

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

The link between care proceedings and adoption proceedings.

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

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

Case law – what have the judges said about the need for adoption?

Lord Templeman in Re KD 1988:

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

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

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

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

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

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

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

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

G (A Child) [2013] EWCA Civ 965

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

re B-S Children [2013] EWCA Civ 1146

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

The key points of the judgment can be summarised as:

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

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

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

Proportionality is the key factor

The Supreme Court In the matter of H-W (Children) In the matter of H-W (Children) (No 2) [2022] UKSC 17 approved the judgment of McFarlane LJ (as he then was) in In re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2013] 3 FCR 293:

The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option … ‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

And at paras 59 and 60 said this:

Unfortunately, whilst the judge deals with the welfare checklist from (a)-(f) he does not specifically deal with (g) which is the range of options. Also, he does not fully recognise the impact of the section 31A plan for permanence in relation to each child. Unfortunately, paras 142-145 of the judgment cannot cure the problem as these paragraphs simply raise the issues rather than analyse them.

The judge’s treatment of the facts and the evidence was thorough. He undoubtedly directed himself that his orders were required to be proportionate. However that is not the end of the matter. The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child. Nor is there any comparison of the harm which might befall the children if left at home with the harm which would be occasioned to them if removed, and separated not only from the parents but from each other

Rowing back from ‘adoption as the last resort’?

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

Suesspiciousminds discusses these cases in his blog post and comments:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further refinement of the ‘nothing else will do’ test – not appropriate when court needs to chose between two good placements.

Following Re W (A Child) [2016] EWCA Civ 793, the court decided that the question of ‘nothing else will do’ is not apt as the starting point in cases where the court had to decide between two different households – in this case the potential adopters and grandparents who wanted an SGO. The question to be answered is what outcome will best promote F’s welfare for the rest of her life.

The court said this at para 68 about the phrase ‘nothing else will do’:

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

69. Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Rare example of court refusing to make an adoption order – reliance on presumption of ‘right’ to placement with birth family that is no longer good law?

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

For further discussion of this case, see suesspiciousminds.

The Judge commented at paragraph 95:

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

BUT – would this case have survived the analysis of the Court of Appeal in Re W (A Child) [2016] EWCA Civ 793, which rejected the presumption in favour of placement with birth family?

The court said at paragraph 71 of the judgment

The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.

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

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

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

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

There is a useful case here, setting out the need for Judges to give clear reasons for their decisions C, D AND E (CARE PROCEEDINGS: ADEQUACY OF REASONS)[2023] EWCA Civ 334. It is a good idea for the lawyers to agree a note of the relevant law to assist the Judge.

Useful case of E (A Child) (Care and (Placement Orders)[2023] EWCA Civ 721 where a mother successfully appealed the decision of the Judge not to order psychological assessment.

No duty to assess wider family members – but it may be desirable

The case of RE H (Care and Adoption : Assessment of wider family) 2019 confirms that there is no ‘absolute duty’ to seek out wider family members and assess them. The court commented:

First, repeating a point made earlier (see [22]), none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare .

Financial and Housing Advice

Financial help/advice

Section 17(6) of the Children Act 1989:

see this article by Simon Cardy about LA using their powers to make cash payments in exceptional circumstances.
The Public Law Project have published a guide about financial help under section 17 for families who don’t qualify for mainstream benefits.

ADT Fourth World -a human rights-based, anti-poverty organisation with more than 40 years experience of engaging with individuals and institutions to find solutions to eradicate extreme poverty in the UK. Runs a family support programme.

Benefits Guide 2017 – In the United Kingdom, millions of pounds in benefits is left unclaimed every year. A staggering amount of people could greatly benefit from this help, yet many are simply unaware of their entitlement.

Benefits Guide.co.uk – a free to use resource which provides clear and comprehensive information on all available UK welfare benefits as well as guidance on benefit applications, appeals, emergency assistance & legal help.

Buttle UK – to give children and young people living in poverty a fighting chance. Operates grant programmes to buy basic items.

The Royal National Children’s Foundation – a charity which helps vulnerable children and young people in Britain whose circumstances are seriously prejudicial to their normal development and where no other care is available. It can provide grants and boarding school placements for children aged 7 – to give children and young people living in poverty a fighting chance; offers grants to buy essential and basic items.

Citizens Advice Bureau – free and independent advice, help with managing debt.

Christians Against Poverty – free help with managing debt, a national charity that wants to lift people out of debt and poverty.

Family Action – a leading provider of services to disadvantaged and socially isolated families since its foundation in 1869. They work with over 45,000 children and families a year by providing practical, emotional and financial support through over 100 services based in communities across England. It runs a small grants programme, dealing with welfare and education issues.

Local Welfare Assistance Scheme – use this map from the Children’s Society to find assistance local to you following the abolition of the crisis loan and community care grant schemes.

National Debt Line – Use the on line advice service or call 0800 808 4000 for help.

Money Advice Service – a free service set up by the Government to help people manage their money.

Step Change Debt Charity – offers expert advice and practical solutions to problem debt.

Turn to Us – a free service that helps people in financial need to access welfare benefits, charitable grants and other financial help – online, by phone and face to face through partner organisations.

Guide to Universal Credit by Lisa Manners

Housing

Action Homeless – charity based in Leicestershire dedicated to tackling the causes and consequences of homelessness. Undertakes preventative work in the community to stop homelessness from occurring, especially amongst groups of people who are particularly at risk.

Crisis – national charity for single homeless people.

Gov.uk site – emergency housing if homeless.

Shelter – gives practical housing advice and support online, in person and by phone. Expert advisers give free, confidential advice 365 days a year, helping with everything from mortgage arrears to finding a place to sleep. Call 0808 800 4444.

What the internet can teach us about communication – and being better professionals

The two words ‘information’ and ‘communication’ are often used interchangeably, but they signify quite different things. Information is giving out; communication is getting through.

Sydney J. Harris

This is an article by Sarah Phillimore of St Johns Chambers in Bristol who has been a family law barrister since 1999 and worked in courts all over London and the South West.

In this article Sarah discusses the impact of the Internet on professional debate and the new drive for openness and transparency in the family law system and how it is hoped this can have positive outcomes for all involved in the area of child protection law.

I write from the perspective of a family law barrister who has been in practice for nearly 15 years. The bulk of my work is in care proceedings and most of the time I represent parents, although I am also instructed to represent Local Authorities and Guardians.

I am also someone who spends a lot of the time on the Internet, discussing things that interest me. I now have an ipad and often many hours in the day spent travelling or sitting and waiting outside court, so I have been able to indulge this hobby pretty regularly.

What I have found depressing over the years is the increasing number of those commentating on issues of child protection who firmly believe that the entire system is corrupt and broken. They argue, inter alia, that children are taken from loving homes, for no good or for ‘silly’ reasons in order for Local Authorities to fulfill their government sanctioned ‘adoption targets’. Given that their belief is of a malign State which deliberately sets out to ruin families for some obscure and unexplained financial benefit arising from each ‘forced adoption’, it is not difficult to understand why their views of family lawyers are equally stark and unflattering.

I am variously told that I am ‘a legal aid loser’, that I am ‘in the pockets of the LA’ and do what I am told or I won’t get paid. I am told that my clients don’t get to see the evidence against them and/or are not allowed to challenge it and if I haven’t noticed that I am swimming in a sea of corruption, it is because I am too stupid.

I consider myself a relatively robust individual and can weather the insults directed at me on line. But it isn’t the impact on my psyche that is the issue here. It is what these Internet debates have more widely revealed as the general corrosion of general public trust in the entire system of child protection. I think there is now an urgent need for more professionals not only to recognize this but also to engage with it. The protection of children is far too important an issue to be hijacked by just one agenda.

Lack of public trust and confidence in the system.

One of the reasons I am so concerned is that in the last few years, I have noticed an increasing and worrying trend for the Internet debate to spill out into my practice. I have had a number of clients who tell me that they understand why their child is being removed – because it will make the LA money. I have been quoted £30,000 per child, never mind that this is more likely a figure to represent the cost of keeping a child in foster care for a year. When I ask them to tell me WHY a cash strapped LA will spend large amounts of money on expensive care proceedings, of course, they cannot explain. I really do doubt there is an international conspiracy to steal children, headed by the United Nations – as some have asserted to me in all seriousness.

All this represents is a sad waste and diversion of some parents’ energies away from what really matters – dealing with their issues with drugs, with alcohol, with violence, which are standing in the way of their ability to translate the love they undoubtedly feel for their children into action which will ensure their children are reliably fed, clothed and taken to school.

The saddest example of this for me to date was the client who had made some dramatic and impressive changes to a life previously blighted by alcohol misuse and denial of the same. She had achieved the previously unprecedented stability of her own accommodation and had stopped drinking for a number of months. But on her application to discharge a placement order, she stood up to address the Judge on the basis that her child had been ‘stolen’ to make money for the LA. There was little I could do in closing submissions to repair the damage that had done to her credibility in the court’s eyes and an application which that morning had seemed promising, by lunch time had collapsed.

The point I am trying to make is that these Internet debates and the constant round of conspiracy theorizing have real and serious consequences when people take them out into the real world. In addition, whilst our energies are focusing on either maintaining or detracting from these theories, they are not focusing on what really matters – how do we improve the child protection system, how do we ensure that Victoria Climbie, Peter Connolley, Daniel Pelka and many other children did not die in vain, while at the same time not being too quick to remove children on an imperfect understanding of their family or medicial history?

The case of Allessandra Pacchieri and the ‘forced caesarean’ in December 2013 was a stark example of all that worried the conspiracy theorists about the reach and malign motives of the State: the narrative of John Hemming MP together with Christopher Booker in the Telegraph being the targeting of a vulnerable foreign national who suffered a ‘panic attack’ and then found herself detained in a psychiatric hospital and forced to have a C section so that her baby could be ‘taken’ for adoption.

It was also a clear example of how frustrating it is for energies to be so misdirected. I agree there are interesting questions to be asked about the degree to which Alessandra Pacchieri was or could have been consulted prior to the court deciding that medical intervention was in her best interests. And I share the concerns of some commentators about why the original application was made on an urgent basis, when by that time she had been sectioned for a number of weeks and her advancing pregnancy was hardly a mystery.

However, a case involving a woman who was seriously mentally ill at the time of the application, to the extent that she lacked capacity to engage in legal proceedings and was represented by the Official Solicitor, whose two elder children did not live with her due to her inability to care for them, and who had both been delivered by C-section leading to doctors to have legitimate concerns about a subsequent attempt at a natural birth, made this a rather more complicated scenario than some would wish and certainly much less of a clear cut example of a ‘corrupt’ or ‘evil’ system.

However, reasonable and sensible debate about what could have been done better in this case quickly became buried under a mass of assertion and counter assertion about the systemic corruption of the family law system as a whole.

Positive changes to the way we debate

The first good thing

However, not all was lost. Some good has come out of what at first glance seemed to be yet another rehash of the same wild and unsupported allegations about ‘baby snatching’, lies and collusion.

The first good thing is a move towards greater transparency in the reporting of court judgments. If we have confidence in the decisions our judges make – as I do – we should not be afraid to let as much sunlight in as possible.

In the court ruling concerning reporting restrictions relating to Ms. Pacchieri’s baby, the President of the Family Division himself noted that: [2013] EWCH 4048

This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

The President was true to his word and on January 14^th 2014 issued a Practice Direction relating to Transparency in the Family Courts and the Publication of Judgments that hopefully will lead to judgments routinely being transcribed and widely published. The cost of such endeavor must surely be worth it when balanced against the harm and damage done by loss of confidence in an entire system.

As the President also said in his 2013 judgment

… How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

I am glad that the debate is moving forward with regard to transparency but hope also that proper regard is going to be given to the need for maintaining privacy in some cases – particularly when the children don’t want details of their family lives exposed to greater scrutiny. There is a good blog post by Pink Tape on this very point.

You may also be interested in The Transparency Project -the aim of the project is to shed some light on the workings of the Family Courts, to make the process and the cases understandable for people without law degrees.

The second good thing

Along with this judicial recognition of the need for greater transparency which has been explicitly recognized goes hand in hand with increased pubic discussion of such cases, came the possibly belated recognition that those of us who did have faith in the family justice system needed to also use the power of the internet to share information and hopefully encourage more positive debate.

A number of contributors to the various Internet discussion threads pointed out that there did not currently seem to be any clearly signposted resource offering advice and information without an agenda to all the people who might be involved in care proceedings. There were many excellent sources of information on the Internet but they appeared to be directed to particular groups of people only and it was not always easy to find unless you knew what you were looking for.

So a number of us from a variety of backgrounds and experiences decided to get together and create a resource that would help to inform all of those who might be involved in child protection issues be they, parents, lawyers, social workers or doctors. You will find us at www.childprotectionresource.org.uk

We hope that this site will be useful and interesting to a wide range of people. We always welcome contributions or comments, as long as they are reasonably polite and you don’t make serious assertions about corruption or conspiracies without some kind of proof in support.

How the internet can make us better professionals

I also expect and hope to learn from the site. The emotional perspectives from parents and children who have experienced the system are invaluable and sadly can sometimes get overlooked by a busy practitioner who is focusing on the forensic task of ‘winning’ a case.

I ask my clients to trust me; to trust that I am going to do the best job I can for them, that I am not a ‘legal aid loser’, here to appease the LA or simply worrying about paying my mortgage but that I chose to be a family lawyer because this area of law deals in vital and necessary issues about the very foundations of our society, our treatment of the vulnerable and our respect for difference.

But quite apart from my commitment to family law, equally my clients need to trust me to always recognize their humanity – that I won’t be blasé or cynical about their case, one of many to me but the only case that will ever matter to them. We all need to remember and understand that sometimes the conspiracy theories are promoted by many who have suffered real pain from the removal of their children and who sadly met along the way professionals who were rude, hostile or dismissive.

I do accept that mistakes have been made and miscarriages of justice have occurred. Mistakes in this field are particularly regrettable given their often profound and life long consequences for the children and families concerned – both for those children removed too soon and those removed too late, or sadly not at all.

What I don’t accept it that such mistakes represent a deliberate and planned attempt to ruin families and ‘snatch’ children. The more time we waste on that debate, the less time and energy we have to devote to ways to improve the system. For example, see the excellent Kids Company campaign ‘See the Child’.

Conclusion

We need to remove as many of the barriers that stand between trust and good working relationships as possible. While professionals must remain ‘professional’, there is a danger this can slip into aloofness, imposition of unnecessary barriers to communication, and/or unwillingness to enter a legitimate arena of debate. This area of law and of life is too important to be dominated by those with narrow and possibly dangerous agendas, be they professional or parent.

The time is long overdue for greater transparency, co-operation and debate. We all want the same thing. To protect children, the most vulnerable members of society, and to do the least harm possible in the pursuit of that essential aim.

Further reading

I don’t agree with what my guardian is saying and I want my own solicitors

I want to talk directly to the Judge

Familly Justice Council Guidelines

What happens when meeting the Judge goes wrong?

I want to give evidence in court

The fair and accurate determination of the truth

Risk of harm to the child

I want to tell my story to the press

Reform Proposals

Further reading

Cafcass care application study 2014

Failure to consider other options

Failure to meet the requirements of the PLO

No letter before action

Timing of the application

A cause for celebration?

If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

And what does ‘performance’ mean?

Update – Kent Responds Oct 2014

But how much further forward does this take me, given that I still don’t know how ‘performance’ is defined?

EDIT – I reply to Kent

EDIT – Kent reply on 23rd October 2014. Lots of words but no information.

The guidebook sets out the Four Key Elements of Total Contribution.

‘Targets’ defined in 2012 FOI response

Further reading

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

Why do things go so wrong?

And what are the consequences?

Personality disorders are conditions in which an individual differs significantly from an average person, in terms of how they think, perceive, feel or relate to others.

Debate over why and how we are diagnosed with a mental illness

What is a personality disorder?

Why do some people develop a personality disorder?

Types of personality disorder

What’s the impact of a personality disorder on parenting?

What’s the impact of personality disorder on care proceedings?

Impact on working with professionals

Impact on timescales – what happens in the care proceedings if I need treatment for PD?

Further information, help and support

What is a special guardian?

Who can be a special guardian?

How do I become a special guardian?

What does being a special guardian mean in practice?

Should a supervision order be made at the same time?

How can I vary or discharge a special guardianship order?

What support do special guardians get?

Concern over the increase in numbers of special guardians.

Amended Regulations 2016

Concerns from CAFCASS October 2015

Reform Proposals

Final report of the Public Law Working Group

Further Reading

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

Introduction and summary

Remember that Care proceedings are NOT adoption proceedings

The relevance of the 26 week timetable.

See further para 49 of Re B-S:

The link between care proceedings and adoption proceedings.

Case law – what have the judges said about the need for adoption?

Lord Templeman in Re KD 1988:

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

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

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

G (A Child) [2013] EWCA Civ 965

re B-S Children [2013] EWCA Civ 1146

The key points of the judgment can be summarised as:

Proportionality is the key factor

Rowing back from ‘adoption as the last resort’?

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

Further refinement of the ‘nothing else will do’ test – not appropriate when court needs to chose between two good placements.

Rare example of court refusing to make an adoption order – reliance on presumption of ‘right’ to placement with birth family that is no longer good law?

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

No duty to assess wider family members – but it may be desirable

Further reading

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

Financial help/advice

Housing

The two words ‘information’ and ‘communication’ are often used interchangeably, but they signify quite different things. Information is giving out; communication is getting through.

Sydney J. Harris