Appeal, revoke or discharge? How to get your child back after care proceedings concluded

One of the most common enquiries we get in our Facebook group advice for parents dealing with CAFCASS and the family courts is from birth parents who want to challenge a decision to remove their child permanently. They phrase it in many different ways but in essence, they want to know how to stop their child from being adopted or placed in long-term foster care.

So what do we need to know to begin with?

Most people contacting us in the advice group have had care proceedings that have ended. We want to know when they ended and what orders were made. That will tell us whether we are looking at an appeal (generally within 21 days of the orders being made) or another application.

Most people use the word appeal but often that would not be the best way to go about it, for them since they are way out of the timescale. It is possible to appeal out of time but you need a good reason why it is out of time.

An appeal

An appeal has to be done very quickly after a final decision is made and has to be done on the basis that the Judge got something wrong – for example, they got the law wrong, they didn’t balance the evidence correctly or they made a decision so weird that other Judges wouldn’t agree.

In order to get legal aid for an appeal, a lawyer has to support your appeal and usually, that will be the lawyer that conducted the final hearing.

Many people asking about an appeal no longer want to use the same lawyers so that can delay matters. It is very unlikely that we would be able to get the papers and commit enough time to understand them from scratch, write advice supporting your appeal and get you legal aid within 21 days. It is possible for you to appeal as a litigant in person as you know your case best of all. We might ask you to write a rough outline of your grounds for appeal and we will put this into a readable statement to put in with your application.

Here are some pages on appealing. Guidance on where you should appeal, and getting your court transcript. Getting the transcript is essential when you want to appeal as this will go at the front of your court bundle of evidence. As soon as you have sent off your application along with your grounds to appeal, you can go ahead and apply for the court transcript and use the delay as a reason for appealing out of time.

APPLYING FOR A COURT TRANSCRIPT.

HOW TO APPEAL AT THE SAME COURT (IF YOU HAD A DISTRICT JUDGE)

HOW TO APPEAL (AT THE COURT OF APPEAL)

HOW TO DISCHARGE A CARE ORDER.

DISCHARGE OF CARE ORDER CARE PLAN TEMPLATE

An application to discharge a care order or revoke a placement order

Many people are actually asking about an application to discharge final orders because there has been a change. The law requires a significant change or sustainable change in circumstances for birth parents to apply to discharge or revoke final orders made in care proceedings. (There is case law that I have mentioned within the revoke/oppose template below where one judge mentions that the change does not have to be significant but does have to be proven to be sustainable over time.

The legal aid for these applications is means and merits tested so a solicitor has to be able to tell the Legal Aid Agency that the application is justified – just to get legal aid. We will need to know what has changed.

If we did not help you with the original proceedings we will need to see the final orders, the threshold that caused your child/ren to be taken in the first place, the care plans and the Judgment (if there was one) at the very least. We will ask what has changed.

In order to discharge a care order, form C110A will need to be completed and submitted to the family court. In an application by a parent to discharge a care order you must satisfy the discharge of care order test.

If an expert recommended a certain period of therapy – you should have completed that. If the Judgment found you were addicted to drugs or alcohol – they should have been abstinent for 12 months or more. If they were a victim of domestic abuse – complete the Freedom Programme or other similar course. If basic parenting was lacking – you need to have completed parenting courses….. and so on.

Go through the Judgment (or the threshold if there isn’t a Judgment) and tick off the criticisms – work out which changes you have evidence for and collect together the evidence.

Can you oppose, appeal or revoke an adoption order?

Most people who enquire about stopping an adoption actually mean making an application to prevent placement with prospective adopters. A placement order is made, usually, at the end of care proceedings alongside a care order, and it gives a Local Authority permission to place a child with prospective adopters. For some children that process is quick, for some, it is not.

Once a child is with prospective adopters a birth parent cannot apply to appeal against or revoke the placement order so timing can be absolutely critical.

However, that’s not quite the end of the matter.

After a child has been with prospective adopters for a while they will apply for an adoption order. When that application is made birth parents with parental responsibility should be informed. They have an opportunity to ask the court to consider that they have made sufficient changes to prevent the adoption order from being made.

Birth parents do not have an automatic right to oppose an adoption order – they have to ask permission to do so from the Judge. That permission is rarely granted because the Judge has to first consider what changes have occurred. To make this application to adopt the potential adoptive parents have to file form A58 before you can oppose the adoption.

The other problem with asking for permission to oppose is how to go about it. Legal aid is extremely difficult to get so my preferred route is to support a birth parent to prepare a clear statement setting out the changes and what they want. We can do that. I do not think it needs to be a lawyer who prepares that statement so agencies can help birth parents do it too.

We have a care plan for discharge of a care order that you can use as a template showing how you would like the children returned in the event that you are able to oppose the adoption. You can find this here.

DISCHARGE OF CARE ORDER PLAN TEMPLATE

Obtaining leave to oppose an adoption Order. 

The birth parents will be told about the application for an Adoption Order but they can’t automatically contest the order. To legally oppose the order, the birth parents have to be given Leave to Oppose. Leave is an odd word; it’s mainly used by lawyers and people in the army to mean a ‘formal’ kind of permission. The root comes a curious mix of German and old Saxon to mean a formal type of approval. When we say leave, we mean to do something with the permission of the court. 

Obtaining Leave to Oppose will involve a hearing where the judge will look at all of the evidence and decide firstly whether there has been a change in circumstances ‘of a sufficient nature and degree’, and if so, secondly whether the court should give permission to the parents to oppose based on the child’s welfare. If leave to oppose is given, there will be a final hearing where the birth parents can contest the adoption fully. If leave to oppose is not given, there will be a final hearing, but the birth parents will not be entitled to make representations. This effectively means that leave to oppose is the last chance for the birth parents to stop an adoption they do not agree with. The court of appeal has on several occasions made clear that the bar should not be set too high so as to make it impossible for a parent to show that they have made sufficient changes. In my experience, the giving of leave is rare but we have got to this point in other cases and gained leave to oppose before

.

And, of course, even if the court gives leave it is no guarantee that the adoption order would be successfully opposed, in much the same way that you might pass the X-factor audition, fly all the way to LA, only to be sent home the day after. Again the court can only make the order where ‘nothing else will do’, but the court of appeal has been clear that this does not create a presumption in favour of the birth family, and simply saying nothing else will do “is meaningless and potentially dangerous if… divorced from… an overall evaluation of a child’s welfare’. As in all applications for an adoption order a child will have been placed for some time, and so the court must take into account the effect of removing the child from that placement or creating a disruption to the placement with the adopters. Many have argued that this more holistic focus on welfare with no starting point in terms of birth family relationships creates an insurmountable hurdle for birth parents wishing to challenge an adoption as they are unlikely to be a more attractive placement option when compared to the professionally approved adopters with whom a child has settled. I have never seen this happen, although I’ve not been around all that long.

Sometimes a placement will not be found for the child or there will be a change in circumstances. In that case, there may be an application to Revoke the Placement Order, or for ‘revocation’. Revocation means to ‘take back’. This may be made by the local authority or on behalf of the child as of right, but if it is made by any other person needs permission. An application can only be made if a child has not been placed for adoption. The form you will use for this is Form A4

This is important to set these cases up against that

Court of Appeal overturns case law on discharging care orders

Lord Justice Jackson found 2018 ruling was wrong in saying ‘something close’ to the evidence burden on local authorities seeking care orders is required to refuse parental applications to discharge them

2021/05/28/court-appeal-overturns-case-law-discharging-care-orders/


If a Judge then gives a birth parent permission to oppose the application for an adoption order you should be able to make an application for means and merits tested legal aid.

OTHER FORMS THAT WILL BE USEFUL IN THIS CRITERIA

Probably one of the most important and helpful case laws there is this below.

This template is a mishmash of how to set out your statement for the opposing or revoke of an adoption order and case law that you can use.

Do not copy this in full. Take only what applies to your own case.


Case No: X (scheduled hearing date: )

IN THE FAMILY COURT AT ………………….

IN THE MATTER OF AN APPLICATION UNDER SECTION 24,

ADOPTION OF CHILDREN ACT 2002;

AND IN THE MATTER OF

…………………………………..: D.O.B

BETWEEN: Applicant - ………………………..

-AND -

…………………………. 1st Respondent -

- AND-

CHILD 1……………………………………….

CHILD 2………………………………………….

(Through the child’s CAFFCASS Guardian) 2nd Respondent

- AND -

…………….. COUNCIL 3rd Respondent

_____________________________________________________________

………………………………representation for the revoke of the adoption of

child 1. …………………….. 2………………………………………

: section 47, Adoption of Children Act 2002 (hereafter ‘ACA 2002)

_____________________________________________________________

1. I, ………………………. (hereafter ………………, ‘Ms ……………… (also human rights) or ‘the parent’; 3 4 the child’s mother; or this woman’ et al), of ( ) make this statement knowing its contents to be true, acknowledging its use as evidence for the purposes of ………………………. Family Court notwithstanding substantively in support of revoking the placement for adoption of ………………………...and ……………………….. __________________________________________________________________

….……………………………………. representation for opposing the adoption of the child 1, …………………………………… and child 2 ………………………………………….

__________________________________________________________________

2.……………………………… seeks the benefit of your honour’s discretion under Adoption of Children Act 2002 (‘ACA 2002’) to oppose or revoke …………………………………………………….adoption.

This young woman/man wishes to exercise his/her substantive statutory right to a (non-arbitrary) remedy to revoke said adoption.

3. The adoption judge at the ………………… Family Court must understand that Child adoption (or in effect) forced child adoption, is a serious human rights consideration and that is to say, the local authority and courts have a duty to reunite.

_____________________________________________________________

4. I would like to take this opportunity to remind the judge of the court’s overriding duty of the White Book ‘Equal Footing’ and commensurate case law. I would like to inform the …………………... Family court that this mother/ father is a LIP; therefore the local authority barrister is an ‘officer of the court, must answer or clarify a point of law with regards to adoption law based on the content of this representation. It is unfair that although many attempts were made to obtain this, this young woman does not have access to her court bundle so DX access encryption services should be considered for her. The ………………….. family court has failed to apply the human rights of a woman/ man whose young children were taken based on questions about the Mothers/ fathers mental health after giving birth to/ the birth of ……………………………….. The local authority viewed her/his capability to parent ……………………………………. because of this and brought into question her/his ability to also parent …………………………….when she was born without additional testing.

5.……………………………..reminds ………………………………… family court of her human rights which cannot be interrupted by the family courts, as these Convention Article rights ordinarily go beyond all frontiers, save 1) A legitimate aim and 2) A‘principle of proportionality.’The term qualified right means said public authorities cannot interrupt the ……………………. family’s (‘original family members’) human rights except “by law,” only where necessary in a democratic society, in the interests of public safety, for the prevention of disorder or crime” (ie qualified right). In any event, the measure said public authorities take against ……………………. and her family must be proportionate and sufficiently serious: R (Daly) [2001, HL].

On the same human rights theme, ‘necessary in a democracy has been defined by the UK Privy Counsel first [1998] UKPC 30, and afterwards by the Court of Appeal [1999] 1 AC, as required: i) the justification for any limits on fundamental rights; ii) rationally connected; iii) no more than absolutely necessary: De Freitas and or rehabilitate parents with families (Parliament Under-Secretary.

Forced adoption is not only barbaric as the Court of Appeal judge, President Munby pointed out it is such as drastic step that it must be no other option as it will affect ……………………….. and all of her family for the rest of their lives. According to the Council of Europe, the United Kingdom has the harshest type of child adoption in all European Member States, similar to Canada and the United States of America for equivalency (see Mr Valeriu Ghiletchi (2018).j

The case history.

Tell your story here ( for example. )

6. …………………………. was placed into foster care at …………………………. In modern times, children affected by the local authority pre-court proceedings, are far from safe. Now the children not only cry but literally scream their little hearts out when the local authority social workers, under the presence of police officers remove them from their ill-equipped, inconsolable parents at home (op cit Bellone, (2014), without the presence of lawyers offering legal advice, before tearing apart the families and literally pulling the child physically away from their heart-broken parents, even unhelpfully told by almost calming voice of a male police officer telling an (understandably) angry father to ‘go into the other room’ (ibid Bellone) whilst the children are forced to live with complete strangers. Little ………………………..had this done to her, just because her mummy was poorly for a short while. On the occasion that the police had turned up at (…………………………. Address) there was no social worker with them. In fact, the day before social services had called……………………… father to be and asked that he should take care of ……………………………. although he is not ………………….. father, he agreed to do this and treated ………………………as his own. The police reassured ………………………… and ………………… father that they would bring …………………………….. back to her after 72 hours. Upon calling the local authority they did not know that the police were talking …………………………………. permanently.

7. ……………………………. was having regular contact with her mother three times a week until October 2018. ……………………. did not have a clue of …………………………. local authorities intentions to find an adoptive placement for her child. If adoption was mentioned …………………………. she thought this was merely an option should she not make the changes necessary as described in her psychological report. This contact was reduced to once a month until it stopped completely in March 2019. It has since become revealed as it was documented that The placement was found for …………………………. before any court had commenced.

8. ……………………………………was placed into the same foster care placement at birth. ……………………………. was Removed from ……………………….. at ………………………. hours old. Contact was ………………………….. up until ……………………………….. then this became ………………………………. and stopped completely in …………………………………………

Threshold criteria

Explain what social services or other services did wrong that the judge relied upon

9. The mother was told that she needed to complete therapy of which ……………………………… local authority did not believe that therapy could be completed in the time frame necessary for the child/children that being ……………………before ……………………………. would show some improvement." The mother has indeed completed this and is now also taking courses and demonstrating ways in which she has changed her views as well as her circumstances and due to the courses she has completed can now see where she went wrong and has gone to extraordinary lengths to learn how to be a better parent.

10. The local authority was of the belief that the father/ mother did not have enough support. …………………………………. now has a lot of good support. She has joined groups and has many friends who are professionals in their own field’s and who can help ……………………..in any way they can to enable the family to stay together. These are true friends who do not ask for payment.

11. ……………………………….. was not told and is unsure of what the other issues were if any and was not given any guidance although she asked for this. She would further request the court to ascertain what it would require for …………………………………. local authority to alleviate any further concerns they may have.

(Offer proof and lead the judge to the evidence you have. )



12. Proof of this can be seen by way of text messages sent to …………………………… local authority asking what the procedures are and thus being ignored by a change of subject.

13….…………………………….. has sight of a few documents from ………………………… Local authority that at the time she was not able to consider. These documents state that she had refused treatment for and discharged herself whilst expecting ………………….., and was about to give birth. This she states is not true.

There are further medical documents that state that she had treatment and was discharged. These documents can, with permission serve as evidence for the court’s consideration.

14. Due to a temporary blip in her mental health during and after the birth of her child/ren, This being a time of changing hormones and ill mental health does not mean that …………………… should not be believed again. The psychological report states clearly that …………………………….. had postnatal depression after having her first child but she didn't show signs of having a personality disorder. It is therefore correct to say that …………………………….. local authority was incorrect in their medical assessments of ………………………………………………as they are not qualified to make such assessments and must rely upon the medical assessments before them.

15. Significant changes. (List Significant changes here.)

e.g.

A move of home to a home that is suitable for her and her children.

Courses and training are now completed and are as follows..

26-week emotions course (classed as DBT) Dialectal behaviour therapy.


The freedom course. Certificate held.

The Solihull parenting course. Certificate held.

Safeguarding levels 1 and 2. Certificates held.

Mental health. certificates available.

The boundaries of care. Certificate held.

Everyday English. certificate available.

Social care, social work and the law England and Wales, certificate available.

Depression, a compassionate view. Certificate held.

Challenging ideas in mental health, certificate held.

parenting attachment in the early years. Certificate held.

Emotions and emotional disorders.

16. proof and evidence available within the bundle of evidence provided to the court.

( Many of the courses can be found here. Escape-Evidence-Significant-Change-And-Parenting-Education

You will need to provide evidence of the courses that you have done in your bundle. Name and number the page to lead the judge to the evidence of each course. )


17. The therapy recommended by the expert (give name) is now complete but …………………………………….. has also referred herself for ongoing support as she has found learning about emotional and psychological subjects and gaining the certificates empowering. She intends to carry on with this in the foreseeable future hoping to improve herself and her position. ……………………………….. has also put herself forward to complete additional courses eventually to gain the qualifications necessary to get employment in this area once everything is settled and her children are happy and settled hopefully back in her care or at the very least in a less final placement than adoption. One which can be reversed over a period of time and when she is out of litigation.

18. ……………………………….. has a bigger network of friends including qualified professionals to hand. She shows no signs of any further emotional disorder, save the very normal anxiety at the loss of her babies.

19. Further significant changes. ………………………………………. will accept whatever help her support network and the local authority can offer. ………………………………………….. will work with the local authority to ensure her children are safe and if possible, eventually placed back in her care. {She would like for this to be the eventual outcome.} The mother will accept any supervision order or family assistance order that any judge should place upon her to ensure the best outcome for the children.

20. The children's perspective

21. ….…………………………………………. older child ……………………….. is now two years old. The most important time of a child's life to gain bonds and relationships is within the first two years. This has been taken from them both, as has ………………………………. and her biological mother and her biological father.

22. ……………………………… has a sense of her birth/ family identity insisting that she is ………………………………….. This can be verified in the court bundle at contact: ‘’goodbye’ contact.

23. Alternative placements

24. ….………………………………and indeed ………………………………….. and especially ……………………………. were never offered any alternative solutions in …………………………………… case there is a father available that lives with ………………………………... No SGO (special guardianship order) or other preferable Child Arrangements such as a CAO (child arrangement order) were considered.

Nor was a carefully devised care plan on section 20 which …………………………………………… would have agreed to sign in order to work alongside a designated social worker who could oversee the return of ………………………… and ………………………………to her and the fathers care from her current placement had she been offered this option.

All of these should have and could have been explored and …………………………………….requests that the court does now consider these ideas following the revocation of this unlawful adoption.

26. Reasons for revoke

27. ……………………………….. Local authorities attempt at ……………………………….. forced adoption was either illegal or unlawful as ………………………………. was under the impression that …………………………………….. would be taken by the local authority as a ‘temporary measure.’ until she finished therapy. Temporary as the police officer told her this was shall be defined in its ordinary daily use.

There was no section 20 signed and ………………………………. was never returned as a matter of fact; on the contrary, …………………………………….. a very young child (ergo commercially attractive for ‘adoption matches’) was to be transferred from ‘foster to adoption’ placement. Along with a newborn baby …………………………….who was taken from her mother just …………………………… old…………………………………………. recalls repeatedly asking what the procedures were and she holds the evidence in the form of text messages to show that this was never answered. ………………………………………….. attempted to show all concerned her significant changes, which include a move of home, completion of therapy, numerous courses completed, including The freedom course for parents who had experienced domestic violence. ( past history) A well-known parenting course, the Solihull approach. and many others. She heard nothing more after this and thought that ……………………………… The local authority had decided not to place …………………………….. and therefore believed that she would keep ………………………, that is until …………………………… was also torn from her arms. No more discussion was had about adoption, right up until around March when she was told that her children would be going to …………………………. Along with an email which …………………………………… briefly asks what the previous social worker had said about adoption. Still …………………………………… at all times believed this was ………………………………… if she had completed therapy. This was all the information that she was given.

28. Should …………………………………….. be unsuccessful at revoking the forced adoption she will either appeal the entire placement for an adoption order or ask for a judicial review.


29. Procedural irregularities.

30. The local authority failed to make any contact with the father of ………………………………….before considering adoption.

31. Failing to keep …………………………………… fully up to date. Ignoring messages asking what procedures she should follow to revoke the adoption. It is notable within ………………………….. local authorities stated that they had decided to place the children into foster care as they did not know of the mother's intention to revoke the adoption if adoption were to be enforced. In fact, they admit that they had encouraged and allowed the children to call the potential adoptive parent's "mummy." This could be seen as rushing things through before the children were ready which could be confusing for both of the children and cruel to the potential adoptive parents should placement not go ahead as the local authority has planned without any given notice or consent. …………………………………… has one email which was sent to her in …………………………………… and this is the first time that she was told that adoption had been mentioned by the previous social worker. Whilst …………………………………… had repeatedly asked what the intentions and procedure were, without answer. The new social worker was asking ……………………………………. what the intentions of the previous social worker were.

32. There was no social worker present on the day the police turned up to take …………………………………... They promised her that they would have her back with them within 72 hours. There was no section 20 signed. The social worker had said that she didn't know they were going to take ……………………………... The child was never returned to her mother. There was no updates or further reasons given for …………………………………………… to not be returned as the police had promised.

33. Ignoring the fact that ……………………………………….. was working hard to show significant changes, whilst rushing through the adoption to ensure ……………………………………could not complete her courses within the timescale.

34. There was no attempt made to find alternative care within the family.

35. The court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with: section 21(3).

36. The court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks the capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with: section 52(1).

37. In deciding whether or not to make a placement order the paramount consideration of the court must be the child's welfare "throughout his life": section 1(2). The court must have regard to the 'welfare checklist in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or adoption order is made: section 21(4).

38. The mothers change in circumstances does not have to be "significant", but needs to be of a nature and degree sufficient to open the door to a consideration of whether leave to apply should be given: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069. At the second stage, the child's welfare is relevant but not paramount: Mv Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093. The question for the court is "whether in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and T's interests, leave should be given": NS-H v Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] 2 FLR 918, para

39. “Section 47(5) is intended to afford a parent in an appropriate case and meaningful remedy – and a remedy, we stress, that may endure for the benefit not merely of the parent and also of the child.”

40. Paragraph 71: “Parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the “exceptionally rare” runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of leave.”

41. I urge the judge to bear in mind the wise and humane words of Wall LJ in Re P, para 32. “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

42. I recognise that this application would have a distressing impact on the prospective adopters, but if this application is to represent a true and meaningful remedy then, in that spirit, it ought to be decided based on the evidence and where parents are entitled to a fair trial.

_____________________________________________________________

43. …………………………………. representation for revoking the adoption of ………………………………………: after Adoption Contact: section 51A, ACA 2002

44. There are many other alternatives that could be used than something as final as adoption such as a care plan on a section 20 agreement, exactly as the local authority has been doing to introduce ………………………………………………. to the adoptive family.

45. There could be a slow well managed rehabilitation process using contacts, pictures family videos and when they return for …………………………………… to regain weekly contact with her father.

46. Another alternative could be that the family could step in and have the children on a CAO. (child arrangements order) The day before the police arrived at the ……………………………….. family home to remove ……………………………………………… the social worker had asked the father to take care of ………………………………………… and make sure she was okay. …………………………………… father was an option that was never explored.

47. In the event that said court refuses to grant the revoking of the adoption of ……………………………………….., where there is no face to face contact in the alternative at least seeks post-adoption contact for her self and family under section 51 A, Adoption of Children Act 2002 save Court of Appeal and or judicial review remedies. 6 5 The law in the United Kingdom is in place for direct contact (‘open adoption’) between the adopted child and the birth family through the Children and Families Act 2014. It rarely if ever happens

48. Adoption without parental consent is likely sufficiently serious to leap-frog the High Court under family procedure rules) or judicial review (as above) remedies. ………………………………..representation for opposing the adoption of……………………………………….: Change of Circumstance.

49. The threshold for the initial removal of the children from the mother’s care is no longer met.

_____________________________________________________________________

50. Notwithstanding the revocation of adoption, it has been ………………………………. understanding that to revoke …………………………and ……………………………………. adoption that she must demonstrate a change of circumstance: s.47, ACA 2002. …………………………………………….will say to …………………………… Family Court (‘the family court’ or ‘the court et al) that there have been material changes in circumstances (CoC), in that …………………………………….. now has the benefit of a new home suitable for herself and …………………………………………. to benefit from for life (see Munby below for a discussion on adoption being the very last resort). This paragraph introduces …………………………………………… change of circumstances albeit these are discussed in detail notwithstanding substantive discussions below.

51. Generally speaking, forced adoption is not only barbaric as the Court of Appeal judge, but President Munby also pointed out it is such as drastic step that it must be no other option as it will affect ms London, ………………………….and ……………………………………………and all of her family for the rest of their lives. According to the Council of Europe, the United Kingdom has the harshest type of child adoption in all European Member State, similar to Canada and the United States of America for equivalency (see Mr Valeriu Ghiletchi (2018).

_____________________________________________________________

52. ………………………………………………. likely did not have sui juris (capacity) as a woman who had a temporary lapse in her mental health (vulnerable) and in any event, following the birth of her children. Had ………………………………………………….. known the implications she simply would not have accepted that …………………………………… should remain in care whilst she strove to take steps to improve her position in order to gain ……………………………………. return and in order to keep her newborn ………………………………….. (ultra vires, therefore).

________________________________________________________________

53.….……………………………………….. representation for opposing the adoption of ……………………………………………..the child/rens life story:

_________________________________________________________________

54. ….………………………………………… life story

55. …………………………. was born to ……………………………………… and ……………………………… was named ……………………………………………. on her birth certificate. …………………………………… has had from her birth date a relationship with her mother ……………………………………….. – that is a relationship which necessary in a democracy.

56. …………………………………….., prior to her removal was established in life that is to say she was settled insofar as she had a mother and father figure, forged friendships with her friends and cousins and was loved by her family. Save for ……………………………………… adoption, she likely would have had a good life in ………………………………………, be loved and respected by her family, may have gone to university and or worked hard at school to make a good life for her self. When of age, she would have likely met or married a local gentleman of similar age and had her own children to love and care for just as her (not middle class) mother loves her and had done the best for her. In short, there is no reason to believe that ……………………………………………………. would not have had a good life in …………………………..

57. Child 2 ……………………………………., prior to her removal did not have a chance to be established in life, she had that right removed from her. Nor was she able to bond with or be settled, yet she had a mother and father, she would have forged friendships with her friends and cousins and would have been equally loved by her family. Save for …………………………… adoption, she likely would have had a good life in ……………………….., be loved and respected by her family, may have gone to university and or worked hard at school to make a good life for her self. When of age, she would have likely met or married a local gentleman of similar age and had her own children to love and care for just as her (not middle class) mother loves her and had done the best for her. In short, there is no reason to believe that ……………………………………….. would not have had a good life in ……………………………………...

58. Subsequently, …………………………………………….. has had 2 years from her birth date to live with and be cared for by her mother – that is also necessary for a democracy. ……………………………………….. was raised in ………………………………….., ……………………………….home city, and prior to her removal (for reasons she doesn’t really understand), forced to live with stranger grownups ‘for life,’ expected to like other stranger’s situation.’ It is no coincidence that this particular …………………………………… local authority is considered relatively in poverty when compared with other local authorities in the United Kingdom. Had …………………………………… and her family benefited from a section 17 post-lottery (see APPG below), her mum and dad would likely have got support from the local authority to deal with the mental health issues earlier to help them the family stay together. In any event, …………………………………………..will likely miss his/her mother, ………………………………………………… incredibly in a way in which the ………………………………… local authority or the ……………………………… family courts will never understand.

59. ………………………………….. is a child with feelings and forcing her to live with complete strangers, on a psychological level could simply be devastating for this little child in both the short term and the longer term. With whom ……………………………and………………………… will have developed a bond with the foster family that she was placed into at……………………. old without concern of a further move to other strangers. Concerns of moving the children only appear to be a concern when the Local authority talk of the children moving to their natural parents with whom they should have the most natural bond. Law is one thing but human realities are entirely different when a child is literally forced away from the only mother they knew since being born to her, which some academic writers equate to ‘silent violence,’ (Moor, M. (2005) because save criminal assaults there is likely no assault or trespass on a child than the violence of the forceful removal of a child. It is simply a terrible indictment of justice in a democracy that this happens where her mother was a victim of domestic abuse historically and suffering a bout of anxiety for the safety of her child ……………………………………. as the child’s father was coming out of prison and …………………………………………. feared he would carry out threats. …………………………………. is no longer in a relationship with the biological father of ………………………………………… as ………………………… father was clearly seen as a safe option by social services where they had asked him to ensure her safety the day before the police arrived to remove ………………………………………., whilst social services were not aware this was happening.

_________________________________________________________________

60. ………………………………. representation for revoking the adoption of ……………………………………….. and ………………………………………… background

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61. …………………………………….. child ……………………………………… was removed just through suggestions by a psychologist and not a diagnosis by a psychiatrist, of mental health in the form of anxiety which it was said could be improved by a six-month timescale in that the …………………………………… local authority now claim there is a risk of harm to ………………………………………….. and ………………………………….. if …………………………………. did not complete therapy.

62. ………………………… and …………………………… child Article 8 human rights and child convention rights were automatically engaged at the point the local authority threatened to move ……………………………….. then ……………………………. from …………………………………….. care or alternatively the point when the local authority moved ………………………………….and …………………………..from ……………………………….. care (Munby in Re B-S). It meant that the local authority was required to pass the human rights tests notwithstanding a qualifying interest.

64. ….………………………….. decision to revoke the placement of her daughter’s ………………………………. and ……………………………………….. on the grounds of procedural unfairness. she argues that the local authority has failed to keep her informed of key steps in the process, namely their intention to place the children with prospective adopters without her or the father's consent. The local authority has placed the children in the knowledge that the mother intended to apply for permission under s,24 ACA2002, thus circumnavigating her application.

65. …………………………………….is a litigant in person (no lawyer) who shockingly does not have access to her court bundle by DX (electronic bundle) so is not able to do a key search or navigate her court bundle efficiently, contrary to the family court professionals who do and can. For instance, …………………………………………. without an electronic court bundle is not able to challenge the local authority or CAFCASS key arguments which support forced adoption by copy and pasting from the bundle documents. Her solicitor apparently told her she does not have legal grounds to challenge forced adoption, a rather complex law as it entails European child law and domestic law (ACA 2002), to oppose or appeal the adoption of her sons/daughter's …………………………….. and ………………………………………...

66. The,………………………… local authority did not attempt to seek the father's consent of the adoption.

67. The court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with: section 21(3). The court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks the capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with: section 52(1). In deciding whether or not to make a placement order the paramount consideration of the court must be the child's welfare "throughout his life": section 1(2). The court must have regard to the 'welfare checklist in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or adoption order is made: section 21(4). There was at no time an agreement for the parent's consent should be dispensed with.

68. The change in circumstances does not have to be "significant", but needs to be of nature and degree sufficient to open the door to a consideration of whether leave to apply should be given: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069. At the second stage, the child's welfare is relevant but not paramount: Mv Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093. The question for the court is "whether in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and T’s interests, leave should be given": NS-H v Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] 2 FLR 918, para 27. ……………………………… changes are indeed significant.

69.“Section 47(5) is intended to afford a parent in an appropriate case and meaningful remedy – and a remedy, we stress, that may endure for the benefit not merely of the parent and also of the child.”

70. Paragraph 71: “Parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the “exceptionally rare” runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of the mother to revoke.

71. ……………………………………….notes that the Local Authority state in the Local authorities statement that ………………………………… was already with the adoptive family and calling the woman “mummy” this shows how the local authority have rushed this case through to stop the mother from revoking the placement.

72. I urge the judge to bear in mind the wise and humane words of Wall LJ in Re P, para 32. “the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

73. Many Relationships will be lost which is not in ……………………………….. and …………………………….. best interests grandparents, aunts uncles and cousins. …………………………… son speak often of missing his sisters. The social worker’s report was superficial, UN-researched and uninformed without any meeting whatsoever with father, the children or the children’s very supportive wider maternal family

74. ……………………………………….. changes have indeed been extremely significant. Also, parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the “exceptionally rare” runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of leave.”

75. ………………………………………… reminds the judge of his duty to consider the welfare test for ………………………and ……………………………..and …………………………………. (‘original family members’) (notwithstanding other relatives (including affected children): section 1, Adoption of Children Act 2002.

76. Since ……………………………… is revoking the adoption of ……………………………. and …………………………………… the adoption judge must apply the full adoption law for her and her family (especially to benefit …………………… and ……………………………..). Hence ………………………………… will be asking the judge to come to a decision for ……………………….. and ………………………………….: “(1) [Subsections (2) to (4) apply ] whenever a court…is coming to a decision 12 relating to the adoption of a child:” Section 1 (1), Adoption of Children Act 2002 (‘ACA 2002’).13

77. ………………………………….. informs the judge that “coming to decision” applies to her because it is “the adoption of children” (………………….. and ………………………….) by a court (…………………………… family court):

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78.….………………………………….. representation for opposing the adoption of …………………. and ………………………….: Child adoption law: s.1 (2), (4), (7) (adoption decision/ contact), ACA 2002 _________________________________________________________________

79. ……………………………….. reminds the adoption judge that section 1 ‘ (2) to (4)’ Adoption of Children Act 2002 statutory provisions are: “(2) paramount consideration of the court must be child’s (………………………… and ………………..) welfare, throughout their entire life; (3) The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare; (4) The court must have regard to the following matters (among others)— (a) Child’s ‘ascertainable wishes’ and ‘feelings’ regarding the decision (considered in the light of child’s age and understanding); (b) child’s particular needs; (c) The likely effect on child (throughout their life) of having ceased to be a member of the original family (‘……………………………… family) and become an adopted person; (d) The child’s age, sex, background and any of child’s characteristics which the court considers relevant, (e) any harm which the child/ren has suffered or are at risk of suffering, (f) the relationship which children have with relatives (……………………………. and her family), and with any other person.. the court considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of it's doing so, (ii) the ability and willingness of any of child’s relatives (ie …………………………………. family) or of any such person, to provide the child with a secure environment in which these two girl's can develop, and otherwise meet Children’s needs, (iii) the wishes and feelings of any of the children's relatives (………………………………….., or siblings), or of any such person, regarding Child.” 13 The full adoption law in paragraph 3 and footnote 6 (in detail) is never applied in practice after the placement for an adoption order has been made. Only 5% of adoptions are ever revoked apparently. It is not remotely possible for these substantive criteria to be applied in reality in a limited time by non-lawyers, namely social workers employed by the local government and by CAFCASS, also social workers employed by the government. See ‘the risk society’ and the experts, below. There are no lawyers for parents before family court proceedings. Lawyer’s come into the picture on the triggering of ‘Legal Planning Meeting.’ See PLO. s.1 (7); It “includes”…“any proceedings:” s.1 (7), such as “an adoption order:” s.1 (7), ACA 2002. _________________________________________________________________

80. …………………………. representation for opposing the adoption of …………………………… and …………………………………..: best interests of ……………………………… and …………………………., welfare tests: section 1, ACA 2002 _________________________________________________________________

81. ………………………….. and ………………………… paramount consideration: Child’s welfare for life

82. ………………………………. reminds the adoption judge of his duty to consider the welfare test for ……………………….. and …………………………… and ………………………….. (‘original family members’) (notwithstanding other relatives (including affected children): section 1, Adoption of Children Act 2002.

83. The s.1 (7) decision for the adoption of x child as set out in paragraph 14 applies to section 1 (2), ACA 2002. At s.1 (2); it states: “…the paramount consideration…child's welfare throughout …………………….. and ………………………….. life:” section 1 (2), Adoption of Children Act 2002.

84. ….……………………………… will discuss ………………………. and ……………………. paramount consideration, both of her daughter’s welfare for life, and family interests below (owing to limited space insofar as outlining complex child adoption law is the priority, before applying to ……………………………… facts).

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Case law.




85. ………………………………. representation for opposing the adoption of ……………………….. and ……………………………………..: Child adoption law: the Threshold. Social workers and CAFCASS guardians use ‘best interest’ of the child. A keyword search for said terms was used on the Children Act 1989 (‘CA 1989’), Adoption of Children Act 2002, Children Act 2004 (CAFCASS guardian), Children and Families Act 2014 (‘CFA2014’). It was located for police emergencies only: only at section 46 (10 (d)), CA1989: emergency police power to remove children; and CA1988 amend. by Sched 2, s.36 (10), CFA2014: child contact in a police environment. ‘Welfare of the child,’ the term legislators use s.1, CA1989. It is an important distinction as ‘welfare of the child’ implies whole family interests rather than the subjective ‘child’s best interest.’ Welfare is also used before the word ‘child, so welfare is the possessor and not the child (ie the child’s).

86. The Threshold. It is clear that it was stated that it would take up to 6 months of therapy before …………………………… will show improvements. Give this view, it would have been wise to allow the mother to complete this before steaming ahead with seeking for adoptive parents.

87, The violent removal of …………………………………………… was over the top gave these facts of ………………………………… willingness to improve herself for the sake of her family. This too is a human right.

88. ……………………………… will consider the statutory threshold for the adoption to judge 16 to make his section 1 (7) decision (as set out in paragraphs 13 and 14 above). The ‘threshold’ in terms of statute is: “any harm which ……………………….. and ………………………….. have suffered or are at risk of suffering:” s.1 (4) (e)), ACA 2002. 31. Interpreting the threshold at common law: 32. The threshold means any fear of harm by Bolton local authority must be sufficiently serious to justify not being ignored based by its type (nature) and extent (gravity). Alternatively, the threshold has not been passed just if ……………………………………….. has made mistakes or she is simply not perfect (‘commonplace human failure or inadequacy’): Lord Wilson in Re B. 19 33. Human rights: before the threshold

89. …………………………….. also reminds the adoption judge of Sir James Munby in Re BS (Children) adoption case, where the starting point for parents is the engagement of human rights before the threshold is considered: Munby at 20 para. 18: “We start with Article 8…relevant passages from three key decisions, K and T v Finland (2001) 36 EHRR 255, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236, and YC v United Kingdom (2012) 55 15 The threshold law is never considered in revoke, or oppose adoption (final adoption stage). It is always ‘change of circumstances:’ section 24, Adoption of Children Act 2002. 16 The threshold (‘significant harm’) in the Adoption of Children Act 2002 would be defined, according to Khaitan, , T. (2014), as an ordinary statute as it affords no checks and balances (also see A V Dicey’s Introduction to the UK Constitution’) for the state (the local authority; the court) to interrupt ………………………….., ………………………AND ………………………child’s substantive rights: see Khaitan, T. (2013) at paragraph 592 “’ Constitution’ as a statutory term” (Sweet & Maxwell (2014); L.Q.R. 2013, 129 (Oct), 589-609. Each democratic country comprises ‘constitutional and ordinary statute’ (Khaitan, T. (2013) notwithstanding constitutional case law (ie emanating human rights case law in the UK and USA constitutional case law in the USA). ____________________________________________________________________

90. ………………………………. representation for revoking the adoption of ……………………………. and ……………………………..: ‘Risk Society’ – ‘the experts’ and the State’s moral panic, and lies versus real statistics _____________________________________________________________________

91. ‘Risk society:’ and ‘the experts’

92. The Council of Europe (see CoE resolution below for details) as above proves that it is not about the alleged risks of harm that parents pose to their 25 26 children, at least in 97% of 10,000 parents’ cases it is not. On the contrary, it is probably more about how the ‘risk society’ and how professionals therein define harm (Marsh, I and Keating, M. (2006 ), Goldblatt, D. (2004 )) and or 27 28 how ‘these self-interested experts and professionals package the ‘harm’ for business purpose (ibid Goldblatt, D. (2004)), or for (corrupt) business purposes (Jones, T, (2019 below). Alternatively, parents in a democracy are not likely to ‘go on to harm their children’ (ibid Rapporteur Mr Valeriu (2018); Op cit Harris, L. (2018); also Duffy, J. et al (2016); as “core abuse has fallen” 29 (Dr Levine (2015) below).

93. Statistics, moral panic run state: ‘Policing families’ and a failed risk model’

94. Misunderstanding the threshold: or abuse of power

95. For instance, many local authorities do not fairly apply the statutory threshold for significant harm in any event. Recent studies reveal that social workers blindly follow local authority guidance or government targets owing to recent history where there were relatively few child deaths at the hands of care-givers (op cit Harris, L. (2018 ), and (op cit Duffy)); it has resulted in a 30 tremendously disproportionate effect to parents’ detriment (ibid Duffy). ____________________________________________________________________

96. …………………………………. representation for opposing the adoption of ……………………….. and …………………………………..: Child adoption law: child’s relationship with relatives; and Human rights 52. “…children have with relatives….or another person... (i) the likelihood of any such relationship continuing and the value to the child:” s.1 (4 (f)), ACA 2002. 53. Child’s “ascertainable wishes and feelings” in light of “age and understanding:” s.1 (4(a), ACA 2002). 54. Child human rights and Child Convention Rights 55. Children’s rights 56. Men had property rights long before children had rights recognised in a legal framework. 57. It would appear that CAFCASS, the child’s solicitor, the social worker, and the local authority itself did not think about the child substantively in terms of “having ceased to be a member of the original family and become an adopted person:” section 1 (4 (c)), ACA2002. 58. The law holds value for the little child and Miss x (single mother) family in this democratic country: “the key principle…children…looked after within their family… parents playing a full part in their lives.

97. …………………………. informs the judge that his section 1 (7) adoption decision also applies to section 1 (4 (f)), ACA 2002: “…child has with relatives….or other people... (i) the likelihood of any such relationship continuing and the value to the child..”

98. Parliament-Undersecretary: ‘rehabilitate the child with their birth family’

99. The local authority also has the same duty to reunite families in foster care as it does in ‘foster to adoption: “….try to rehabilitate the child with their birth family by supporting the family in overcoming the challenges that led to the child becoming looked after in the first place. “Fostering for Adoption” does not change this:” Parliament Under-Secretary for Children and Families (2013) (HL 197 paper)).

100. ….……………………….. representation for opposing the adoption of …………………………….. and ……………………………. ascertainable wishes/ feelings: “My name is ……………………………….!” 44 ‘Handbook on European law relating to the Rights of the Child.’ For lawyers, judges, family court professional including social workers. Copyright European Union Agency for Fundamental Rights and Council of Europe, 2015 http://fra.europa.eu/en/publication/2015/handbook-european-law-child-rights Pdf English version

https://book.coe.int/img/cms/FRA-ECtHR-Handbook-European-law-rights-of-the-child_TK0415510ENN.pdf 45 The UK Government has an agreement with the Convention of Children Rights: Little Book of Children’s Rights and Responsibilities: https://www.unicef.org/rightsite/files/little_book_rights.pdf 46 Parliament Under-Secretary for Children and Families (2013) statement to Baroness Butler-Sloss (adoption scrutiny committee), as cited in Appendix 8, "HOUSE OF LORDS, Select Committee on Adoption Legislation, 2nd Report of Session 2012–13; Adoption: Post-Legislative Scrutiny Report:" (‘HL 197’).

….……………………….. and ……………………….. voice in law

102. Notwithstanding, s.1 (7) decision for the adoption of ………………………….. and …………………………applies to section 1 (4a), ACA 2002. ………………………….. “ascertainable wishes/ and feelings” will be considered by …………………………………… in light of ………………………. and ………………………….“age and understanding:” s.1 (4(a)). The local authority, social workers, the guardian, especially the child’s solicitor likely did not really consider ………………………….. and ……………………….. interest as what is objectively in ……………………….. and …………………………. best interests. …………………………….. will return to this point below.

103. Notwithstanding ………………………… and ……………………………. ECHR Article 8 Right to a Private Life and Right to a Family life, her most important right is her own Child Convention Rights, Article 21: right not to be adopted unless ‘lawfully’ in the child’s interest (or the state has sufficiently justifiable reasons for any ‘qualified interest’ to interrupt these rights (ibid footnote 2). Article 3 Child Convention is her ‘best interests for all court decisions, and’ Article 7: the right to know and be cared for by her parents.

104. Child legal advocacy services: “Sad face; smiley face”. Sad face; smiley face; legal advocacy services

105. The government view is that young children including ………………………………., in particular, must have their voice heard (Simon Hughes (2015 ) instead of another family court 47 professionals doing it, which is likely against their ascertainable wishes/ feelings (Davey, S. M Phd, (2015). Very small children can communicate this way: “AM: “Sad face; smiley face” and “Children can have access to...independent legal advice should they really want to challenge what is happening for them.” Chair (Q.30): ‘Is there an obligation to tell the children…?’ AM: “Yes. Children should know about that.”

106. Final Goodbye contact: ‘My Name is ……………………………….!!’

107. …………………………………. has her own identity and knows and loves who she is. ………………………………..didn't get a chance to know who she was destined to be. Her rights removed from her day of birth.

108. Right to be heard

109. It is not known if ……………………………….. solicitor for the CAFCASS guardian or the local authority or any of its social workers tried to see whether at least …………………………. ascertainable wishes and feelings in light of her age and understanding could be communicated to these family court professionals. It is assumed there was no attempt as once the adoption trains are on its tracks there is no stopping them save derailment: Featherstone (2018). After all sensible deductions have been made whatever is left is likely the truth. …………………………………… and ……………………………………………….. voice has likely been silenced through this forced adoption as their right to be heard in law (section 1 (4 (a)), CA 1989, should have been used by the state to engage her human rights and her child convention rights at the point that there was a threat to move Lisa from her domestic abuse victim mother.

110. Notwithstanding, these substantive laws were likely not applied which is in contrast to what Allison Michalska (see footnote 47 below) said about young children’s rights including ……………………………. rights, in her written evidence to Parliament committee (see para. 68 above). In any event …………………………………………. was not heard by the family courts or said family court professionals entirely, because the family court did not stop her child adoption; as it did not stop her forced adoption (‘ascertainable wishes and feelings), what some academics view as ‘silent violence,’ ((Moor, M (PhD), (2005))), it meant she was forced to live with strangers ‘for life,’ and not her mummy (……………………………….) who loves her unconditionally. ……………………………… is a not child batterer – not a heroin addict, 51 she does not have a criminal record. She was just a mother who had a blip in her life following the birth of her children. It is really no wonder that some journalists view child adoption in the United Kingdom as a ‘corrupt’ practice (Bellone, F. (2013).53 …………………………………… representation for revoking the adoption of …………………………and ……………………..: the state and the professionals: social workers, rhetoric, pressure, and commerce

111. Some quotes from a Community Care article confirm that social workers are employed in toxic environments in terms of pressure, too much paperwork and over-worked (Stevenson, L. 2018). 46 respondents including social worker responses include, “Children and their families deserve better, social workers need lower caseloads ” 54

112. Featherstone: social workers, forced child adoption and the pressure vacuum

113. Featherstone et al (2018) investigated forced adoption and produced a report but interestingly was based on many social workers but much fewer legal 55 professionals’ dialogue providing ‘selected’ interviews. According to Featherstone, the report was made because it was ‘time to’ (the rhetoric), paraphrasing. The real reason for Featherstone’s apparently random investigation into social workers involved in child adoption likely is the Norway social services scandal (op cit Valeriu) fallout, coinciding with a visit from the Council of Europe representatives to England which later realised reports and influential instruments (2 resolutions) on the European Member States including England in the United Kingdom.

114. Featherstone largely presents social workers in a positive light –– as the consummate under-appreciated but overworked ‘professionals.’ For instance, this a more generous view of social workers, somewhat echoing the Community Care above: “..pressure on services….financial cuts and rising demand, less time to work with children and families” and “manager placed a higher value on ensuring they recorded their work than spending time with families”(ibid Featherstone).

115. The Ministry of Justice (MOJ) statistics indicate children and social workers have on average 17 family/ child caseloads per social worker: 17:1 ratio. In contrast, the Community Care article, based on a review by social workers, indicates that social workers have around 25 caseloads per family/ child: 25: 1 (Stevenson, L. 2018). According to Neil McEvoy (2019) expose, in Wales it 58 is a 40:1 ratio.59

116. Is it a coincidence that over those 10 years from 2008 – 2018, or 2019 that adoption has become a ‘quick option’ instead of working with families? Furthermore, the likelihood or the only sensible inference to be drawn is that these aforesaid families are clearly targeted (35,000 public law applications) by local authorities as easy prey probably because the public cuts have had different impacts on 89% of the local authorities in the United Kingdom potentially through poor management, or too many overpaid senior managers.

117. In terms of the adoption judge’s statement, at para. 86, ‘in the last 10 years,’ the UK went into a recession in 2008 because bankers were playing pass the parcel with US mortgages (no income no jobs, assets, ‘NINJA’) which inevitably defaulted predictably. The United Kingdom bankers kept their 60 jobs in England but there was international fallout resulting in prison and other sanctions. In any event, it is the poorest and or the below middle social class communities who are disproportionately affected by the UK’s lack of financial resources (Featherstone) owing to said recession. The lack of legal aid adds to the unfairness of this situation.

118.Post-adoption contact

119. McFarlane’s annual lecture on post-adoption contact; time to revisit63 states that we must revisit the idea of contact with birth families post-adoption.

120. Lord Justice McFarlane's annual lecture, ‘Striking’ a Balance ’ of risk and parent 64 human rights

121. Adoption requires child adoption barristers, Parents such as ………………………………. are at a huge disadvantage as LIP

122. “Lord Reed in the UK Supreme Court (published 26 July 2017) cites the ancient Magna Carta 1215 right to access justice promptly and fairly, which is just as applicable today, 19 November 2018, as in was in the ancient age. “’ In English law, the right of access to the courts…..chapter 40 of the Magna Carta of 1215…remains on the statute book…:“We will sell to no man, we will not deny or defer to any man either Justice or Right….those words are…a guarantee of access to courts which administer justice promptly and fairly:"

 

Case suggestions to use in an opose/ revoke of adoption where it may fit your case.

Re J: A Lesson on Threshold and Logic

Alex Laing, pupil, and Radhika Handa, barrister, of Coram Chambers, consider Re J in which the Court of Appeal picked up a number of the themes articulated by the President in Re A.


Alex Laing, pupil, and Radhika Handa, barrister, both of Coram Chambers

With the proclamation of the President of the Family Division in Re A (A Child) [2015] EWFC 11 still echoing in the valleys below, the Court of Appeal has issued its own bellow.

In the recent case of Re J (A Child) [2015] EWCA Civ 222, a "rather shocking case" (per Vos LJ, at [53]), McFarlane, Vos and Aikens LLJ pick up a number of the themes articulated by the President in Re A [2015] in what is an(other) emphatic pronouncement to judges and practitioners in the family justice system: we must all understand the principles underlying Part IV of the Children Act 1989, and the forensic process it demands.

This article distils the Court of Appeal's judgment. The focus is the process of logical reasoning demanded by care cases at the threshold stage: the issue on which their Lordships' concerns coalesce. We suggest that the lesson to be derived from the judgment is a renewed emphasis on the basics of (1) making reasoned findings of fact (2) as part of a specific and individualised threshold (3) in which the link to significant harm is rigorously identified.

Care cases: general principles Before turning to the facts, we might helpfully begin with the judgment of Aikens LJ, penned for general application. There, in two pithy paragraphs, Aikens LJ sets out a comprehensive summary of the fundamental principles to be applied in care cases, particularly where the care plan is for adoption, as canvassed at length by the President in Re A [2015].

Describing the President's judgment as one "that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases" , Aikens LJ offers his précis in the following terms. At [56]:

i) In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and, if adoption is to be ordered, to demonstrate that "nothing else will do", when having regard to the overriding requirements of the child's welfare.

ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".

iii) Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing.  If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great,  or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.

iv) The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.).

v) It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]."1
vi) It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs"   simply because those facts are established.   It must be demonstrated by the local authority,   in the first place, that by reason of one or more of those facts,  the child has suffered or is at risk of suffering significant harm.   Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare.     The court must guard against "social engineering".

vii) When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall. 

viii)  In considering a local authority's application for a care order for adoption the judge must have regard to the "welfare checklist" in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002.   The judge must also treat, as a paramount consideration,  the child's welfare "throughout his life" in accordance with section 1(2) of the 2002 Act.   In dispensing with the parents' consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] 2 FLR 625.  

Re J [2015]: the factsJ's mother was 16 at the time of J's birth and had spent the majority of the preceding three years in local authority care; J's father was three years older. Prior to J's birth, the mother was placed, with her co-operation, in a foster home that could accommodate both herself and the baby. When the foster placement broke down, she moved, shortly after J's birth, to live in a second mother and baby foster placement. That placement broke down too, in December 2013, when the mother left the foster home. Since then, J continued to be looked after in foster care on his own.

The parents underwent a community-based parenting assessment in early 2014, which recommended that J should not be placed in their care. Whilst the assessment

"…identified a number of positives about the parents. This is not a case where features such as learning disability, addiction to Class A drugs or alcohol, mental health or concern over sexual matters feature at all", at [6],

the recommendation was based on:

"…an apparent inability by the couple to demonstrate co-operation and motivation to engage fully in the assessment process, a difficulty that they had in accepting advice from the workers, evidence of stresses within their relationship and an inability to demonstrate "any significant insight into the concerns regarding their care of J". In addition there was concern over the father's admitted use of cannabis both at an early stage prior to J's birth and also in the period following J's removal from the mother's care… the assessors identified possible evidence of domestic violence between the mother and the father", at [6], both per McFarlane LJ.

With other family members excluded as potential carers, the care plan developed by the local authority was for adoption, in which they were supported by the Children's Guardian's recommendations.

The judge heard three days of oral evidence before adjourning for written submissions and judgment: a care order and a placement order were made.

The appeal was brought by the mother and supported by the father; the Court of Appeal had little hesitation in granting it and remitting the case to be re-heard. McFarlane LJ found that "the judge's judgment represents a wholly inadequate evaluation of the important issues that fell for determination", at [2].

Threshold: a thorny issueFrom these factual roots sprouted a thorny legal issue: threshold. The parents largely conceded the findings – however, they did not agree in the court below that threshold was crossed. That, as found and proved by the judge, read as follows:

"THRESHOLD
 …

Facts

4. The local authority relies upon the following facts:

a) (Mother) and (Father) have lacked positive role models.

b) (Mother) and (Father) have not always been honest with professionals. For example:

i) During the course of the parenting assessment the first respondent was not initially honest about how she came to sustain a black eye; and

ii) The second respondent, initially, failed to disclose the extent of his cannabis misuse.

c) (Mother) and (Father) have failed to consistently engage with professionals and accept the support provided.

d) …

e) (Mother) and (Father) have shown a lack of understanding with respect to domestic abuse and the impact this has on a child. Prior to the birth of (J) there was an incident whereby both parents injured each other. (Mother) hit (Father) with a shoe and (Father) bit (Mother). On 1 March 2014 the police were contacted by a member of the public with regards to an incident of domestic abuse between (Mother) and (Father).

f) (Mother) and (Father) lack appropriate positive support networks.

g) (Father) has a history of cannabis misuse. On 27 January 2013 he received a caution for possession of cannabis.

h) Throughout the assessment process (Mother) and (Father) have displayed emotional immaturity."

The Court of Appeal was troubled by three points in particular. Each permits of broader application: (1) failure to make findings of fact; (2) generalised drafting; (3) lack of linkage.

(1) Failure to make findings of factOn appeal, the argument on behalf of the mother emphasised what was described as the judge's failure "to identify and/or make findings of fact that would support a finding that the s.31 threshold criteria were established in respect to J", at [28]. The submission was advanced by the father too, who argued that the lack of such findings stemmed from the absence of any effective analysis of the evidence, which was itself exemplified by "the complete absence of any reference to the father's evidence", at [31].

It was submitted that such an approach fell foul of Sir James Munby P's dicta in Re A [2015]:

"I add two important points which I draw from the judgment of Baker J in Devon County Council v EV and Ors (Minors) [2013] EWHC 968 (Fam). First, I must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. I have to survey a wide canvas. Secondly, the evidence of the father is of the utmost importance. Is he credible and reliable? What is my impression of him?", at [6].

It was also argued that as a point of logic the approach precluded the judge from finding the threshold met and from undertaking the required welfare and proportionality evaluation.

To McFarlane LJ, there was great force in these arguments. He noted:

"Having heard oral evidence over the course of three days, it was incumbent upon the judge to offer an evaluation of that evidence. For the judge not to mention the oral hearing at all must beg the question why, if the oral material was not, in his view, relevant to the issues, the judge allowed the oral hearing to take that amount of time", at [41].

As set out earlier in this article, Aikens LJ examined this point in the context of a local authority's role. At [56 (ii)]:

"…the local authority must adduce proper evidence to establish the fact it seeks to prove… it is for the local authority to prove it [a failure to admit, recognise or acknowledge] is the case and, furthermore, that the matter of concern 'has the significance attributed to it by the local authority'."

It is of course a basic but fundamental part of the forensic process that a judgment makes clear not simply what evidence was heard or read, but also the court's analysis of that evidence and any findings of fact made.

(2) Generalised draftingA second complaint made by the Court was that a), b), c) and h) of the threshold, set out above, were drafted in general terms, without reference to specific factual matters. The inevitable result is a breakdown in the process of logical reasoning: without reliance on specific facts, the required links cannot be woven with the sufficient degree of logical rigour.

Indeed, the quarrel with generalised drafting goes beyond the lack of assistance it affords the court in surveying the evidence and making 'findings'. At a fundamental level, the Article 6 rights of the parents demand that they know, in detail, the case against them.

As an aside, McFarlane LJ helpfully noted that none of the above should sit uncomfortably with the President's expressed view on the format and length of 'threshold statements'. Sir James Munby P having noted that: "the threshold statement is to be limited to no more than 2 pages"; "it is not necessary for the court to find a mass of specific facts in order to arrive at a proper threshold finding" (my emphasis); and, the court needs "to know what the nature of the local authority case is; what the essential factual basis of the case is; what the evidence is upon which the local authority relies to establish its case; what the local authority is asking the court, and why" (all, View from the President's Chambers: the process of reform: the revised PLO and the local authority).

For many practitioners, however, the two may not make a comfortable fit: there is an obvious tension between the thorough, forensic analysis (quite properly) demanded by the Court of Appeal and the requirement of brevity. Taking this a step further, one could trace that tension through family law more broadly: are not the demands as to bundle length and the 26-week target examples of the same?

(3) Lack of linkageLinkage to significant harm is fundamental to threshold: it must be at the forefront of the draughtsman's mind. In short, a 'threshold statement' is not a bald assertion of 'findings' sought: the 'findings' must be linked to the significant harm that the child has suffered, or is likely to suffer, and the nature of such harm must be identified.

That this must be right is clear for two reasons. First, because it is what section 31 of the 1989 Act demands. To return to the President in Re A [2015]:

"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A+B+C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through to a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts." (Emphasis in original).

Second, because a failure to do so risks a degree of social engineering2 that is ethically, socially and practically impermissible. Here, practitioners should remember the famous quote of Hedley J on "fallible humanity" (Re L (Care: Threshold Criteria) [2007] 1 FLR 2050), or the more recent exposition of the same by HHJ Jack, at [16] in North East Lincolnshire Council v G and L [2015] EWCC B77 (Fam), as cited approvingly by McFarlane LJ, at [44]. In these circumstances, Hedley J's sentiments take on a new vibrancy and ought to be seen as the starting point in care cases, rather than the desperate submission of an almost-defeated parent.

The need for linkage was picked up by Aikens LJ too. As set out above, at [56 v)]:

"The local authority must demonstrate why certain facts, if proved, 'justify the conclusion that the child has suffered or is at the risk of suffering significant harm' of the type asserted by the local authority."

Looking beyond thresholdThe importance of deploying a rigorous approach to the drafting of the 'threshold statement' is not confined to threshold itself. It is a vital step on the path to welfare determination.

Without an intellectually thorough and context-specific bedrock of 'findings', whose link to significant harm is traced in full, and whose relationship with the care plan is similarly articulated, a court is logically precluded from completing the welfare and proportionality evaluation required by section 1(1) and (3) of the 1989 Act, and by the child's and the parents' Article 8 rights.

Without creating new law, Re J [2015] acts as a salutary reminder, and one communicated in the strongest terms: the higher tiers of the Family Court are intolerant of illogical reasoning and superficial analyses. On this view, Re J [2015] is another milestone on the Re B (A Child) [2013] UKSC 33 pathway – it is the latest missive against "sloppy practice" (Re B-S (A Child) [2013] EWCA Civ 1146, per Munby P).

In short, and to return to those well-worn words of Munby P:

"It… [the sloppy practice] must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high", at [40] (Re B-S [2013]).

When it comes to the forensic process, then, it is time to go 'back to basics'.
___________________________
Footnotes:
[1] Re J [2015], at [55].
[2] It is, the authors would argue, the degree of social engineering, rather than the social engineering itself, which is impermissible. As David Bedingfield notes: "When a court removes a child from his parents who have abused that child, that is a form of social engineering. The question, however, is where one draws the line" (Lawyers, Social Workers and the Proportionality Test, 9 March 2015).

23/4/15

 Other notes that can be used if a child is removed from a breastfeeding mother. This is a case from Justice Mumby which some solicitors might need reminding of([ Paragraph 44(iv) is the most important:

““iv) If a baby is to be removed from his mother one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. It is a dreadful thing to take a baby away from his mother: dreadful for mother, dreadful for father and dreadful for the baby. If the state, in the guise of a local authority, seeks to intervene so drastically in a family’s life – and at a time when, ex hypothesi, its case against the parents has not yet even been established – then the very least the state can do is to make generous arrangements for contact. And those arrangements must be driven by the needs of the family, not stunted by lack of resources. Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. And local authorities must be sensitive to the wishes of a mother who wants to breast-feed and must make suitable arrangements to enable her to do so – and when I say breast-feed I mean just that, I do not mean merely bottle-feeding expressed breast milk. Nothing less will meet the imperative demands of the Convention. Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more.””

@transparencyproject.org.uk

Challenging adoption – two recent cases

by Jack Harrison | Oct 26, 2020 | Analysis, Cases, Explanation, FCReportingWatch | 7 comments

In this post, I am going to explain two recent decisions by the Court of Appeal about adoption. These are Re Y – which is about leave to oppose (I will explain), and Re JL which is about leave to revoke a placement order (I really will explain). These decisions are nothing special in terms of their wider relevance – they do not change the law in a landmark way, nor are they ‘disruptive judgments’. They are, however, useful in understanding what the law requires of local authorities and the courts in deciding whether a child should be adopted.

I will first explain a little about what we mean by adoption and how adoption law and process work as a basis to digest these useful cases properly and a useful introduction if you are unfamiliar with adoption. 

What is adoption?

Adoption, in a nutshell, is a process of identifying and placing a child in a forever family different from their birth family. In English law we give adoption a specific meaning – that is the court-controlled process of cutting all legal ties between a parent and their natural child and allowing a child to be completely integrated into a previously unrelated family. Adoption is a completely legal concept to deal with an issue that has happened since the dawn of time: that is children being looked after and integrated into families that don’t share their blood. Think David Copperfield or Jane Eyre. Of course, I would name some more modern examples, but this requires them to be born before adoption was ‘a thing’, and my knowledge of popular culture to be any more than abysmal. 

Adoption happens by the making of an ‘Adoption Order’ under the Adoption and Children Act 2002. The effect of an adoption order is a ‘total legal transplant’ – the child is treated as if they are born to the adopted parents in every way. Adoption is sometimes sought by a local authority at the end of care proceedings – by that I mean when a local authority has brought a case to court because they are worried about children being harmed by their parents, and they have assessed the parents as being unable to keep their children safe. Adoption will always be a plan of last resort; there cannot be any other alternatives or family members who are able to care. In short, and as was said famously in a case in 2013, placement for adoption should only be ordered, against the will of parents, where ‘nothing else will do’ after a detailed look at and analysis of the potential placement options. I say placement options; by this, I mean realistic options and not ones that can be ‘legitimately discarded’. The adoption must be in the best interests of the child throughout his life. Once an Adoption Order is made, it is virtually unchallengeable save for by appeal. 

The extreme language of the adoption cases underlines the fundamental right to family and private life that we all enjoy. Any interference with our human rights is a serious business, and the right to family life can therefore only be interfered with if it is necessary to do so. Don’t forget, adoption is an extreme intervention because it deprives the child and parent of their legal relationship with each other. There therefore needs to be a high hurdle to be leapt over before the court will approve this plan. 

How have we got here? 

Adoption was originally a solution to the legal problem that children were being looked after in families they didn’t ‘belong’ to. Since the 1920s, adoption has become less about formalising existing arrangements and more about providing a home and a family to children whose parents are unable or unwilling to care for them, and a service to those who wish to be parents. In England and Wales we have contested adoption – this is sometimes referred to as ‘forced’ or ‘non-consensual’ adoption, and refers to the ability of the court to order that a child be adopted without the consent of the child’s parents. Although it is said that the UK is an outlier in Europe in that non-consensual adoption is a feature of our legal system, this has largely been disproved as a myth. Nevertheless, non-consensual adoption is more widely used in England and Wales than in many other European jurisdictions. In fact, the present government seems to be very keen to encourage the use of adoption, and to increase the pool of potential adopters – see the latest missive from Education Secretary Gavin Williamson last week on the importance of breaking down barriers to adoption, although I will refrain from further comment. 

Contested adoption means that a child can, with the approval of an independent court, be placed outside of their birth family and be adopted by another family against the will of the parents. The peak year for adoption appears to be 1968, where nearly 25,000 adoption orders were made. The numbers in 2019 were a more modest 3570 for a number of reasons: social attitudes to young, unmarried women being single parents, the permissibility of abortion, stepparents being allowed to have parental rights without adopting and connected carers having special legal status with Special Guardianship. Special Guardianship Order numbers have overtaken adoption significantly in recent years. 

There are problems with the adoption system in this country, not least as Harris-Short (who has written provocatively about adoption) argued in 2001 – prior to Parliament enacting the  Adoption and Children Act 2002 that – the demand of adopters to take on ‘trouble-free’ children does not satisfy the demand for children, leaving a lack of adopters willing to take on the vast majority of potential adoptees who have challenging backgrounds and complex needs. The lack of post-adoption support is frequently criticised. As Doughty highlighted, it is now known that ‘assuming every adoptive family could be neatly reconfigured into a functioning family system was a myth’, but a lack of support post-adoption can leave adoptive carers with feelings of guilt for asking for support or assistance. [Sorry paywalls apply to both articles].

Another issue is that of contact; whilst the law technically accommodates what has come to be known as ‘open adoption’ – that is the adoption of a child by another family whilst maintaining contact with the birth family – it is a power which is exceptionally rarely used (I only know of one reported case where an order was made for post-adoption contact). This is in spite of a growing body of research noting the short-term benefits of post-adoption contact, and the value to the child in helping their adoptive placement last. 

On that note, welcome to the minefield that is the law of adoption.

What is the process? 

I am going to focus on the cases where adoption is used as part of the child protection process, and not cases where the parent might relinquish a baby on their birth. 

First you will have care proceedings. Care proceedings will come about where a local authority or the NSPCC are worried about children being in some way harmed by the parenting they are receiving in their home environment. If the situation becomes more serious and other avenues have not worked – such as implementing a ‘Child in Need’ plan or ‘Child Protection’ – it will bring the case to court. In more serious cases, the local authority might ask that a child is placed in their care. Being in care is not the same as living foster care, but an (interim) care order gives the local authority the ability to make decisions about the child alongside the parents. 

During these proceedings, parents will be assessed. The local authority has the duty to assess the parents but sometimes this will be done by an independent social worker if the local authority doesn’t have the resources ‘in-house’, or if the local authority’s independence is compromised in some way. Family members will be looked at too as part of the need to assess all placement options. The law in England and Wales is clear in terms of where children should live as a result of this process: firstly, with their parents; if not with their family; if not with a friend or some other connected person; and if not then in foster care or in local authority provided accommodation. 

If the parents’ assessment is negative and there are no family members who are willing or able to look after the child, it will be left to the local authority to find somewhere for the child to live. This is always subject to the control of the court – sometimes the local authority negatively assesses a parent, but the judge takes a different view. I am talking in general terms. The options here tend to be foster care or – if the child is younger – adoption. The court will weigh up the pros and cons of adoption against the other options and form a view. If the court decides that a child should be placed for adoption, and in doing so that there are no other realistic alternatives, the judge will make a Placement Order.

A placement order authorises a local authority (acting as an adoption agency) to identify an adoptive family for the child and place the child with the family they have found. This does not mean that the child is now adopted – just that they are placed with potential adopters. To become adopted the adopters – who are entitled to anonymity – have to apply for an 

Adoption Order. 

The birth parents will be told about the application for an Adoption Order but they can’t automatically contest the order. To legally oppose the order, the birth parents have to be given Leave to Oppose. Leave is an odd word; it’s mainly used by lawyers and people in the army to mean a ‘formal’ kind of permission. The root comes a curious mix of German and old Saxon to mean a formal type of approval. When we say leave, we mean to do something with the permission of the court. 

Obtaining Leave to Oppose will involve a hearing where the judge will look at all of the evidence and decide firstly whether there has been a change in circumstances ‘of a sufficient nature and degree’, and if so, secondly whether the court should give permission to the parents to oppose based on the child’s welfare. If leave to oppose is given, there will be a final hearing where the birth parents can contest the adoption fully. If leave to oppose is not given, there will be a final hearing, but the birth parents will not be entitled to make representations. This effectively means that leave to oppose is the last chance for the birth parents to stop an adoption they do not agree with. The court of appeal has on several occasions made clear that the bar should not be set too high so as to make it impossible for a parent to show that they have made sufficient changes. In my experience, the giving of leave is rare.

And, of course, even if the court gives leave it is no guarantee that the adoption order would be successfully opposed, in much the same way that you might pass the X-factor audition, fly all the way to LA, only to be sent home the day after. Again the court can only make the order where ‘nothing else will do’, but the court of appeal has been clear that this does not create a presumption in favour of the birth family, and simply saying nothing else will do “is meaningless and potentially dangerous if… divorced from… an overall evaluation of a child’s welfare’. As in all applications for an adoption order a child will have been placed for some time, and so the court must take into account the effect of removing the child from that placement or creating a disruption to the placement with the adopters. Many have argued that this more holistic focus on welfare with no starting point in terms of birth family relationships creates an insurmountable hurdle for birth parents wishing to challenge an adoption as they are unlikely to be a more attractive placement option when compared to the professionally approved adopters with whom a child has settled. I have never seen this happen, although I’ve not been around all that long.

Sometimes a placement will not be found for the child or there will be a change in circumstances. In that case, there may be an application to Revoke the Placement Order, or for ‘revocation’. Revocation means to ‘take back’. This may be made by the local authority or on behalf of the child as of right, but if it is made by any other person needs permission. An application can only be made if a child has not been placed for adoption. 

This is important to set these cases up against that backdrop. 

Re Y

Y is a little boy of nearly three years. It is an appeal of a decision of a judge who gave Y’s parents – who are profoundly deaf – permission to oppose the application for an adoption order. 

A local authority started care proceedings for Y and Y’s older half-siblings in March 2018 after he was found to have a series of broken bones, including his ribs and both main bones in each of his legs. He was covered in bruises. Y and his siblings were removed into temporary foster care. The parents said that Y’s injuries were caused by his father, and the judge also made findings that mother knew about some of the injuries and had failed to protect Y from the harm his father was causing him. In July 2019 when the court considered what should happen to each of the children, the Court made an order placing Y for adoption. At this time, Y’s parents accepted that Y could not return to their care, and there were no family members viable to care for Y.

As the local authority began looking for an adoptive placement for Y, the foster carers whom he had stayed with since March 2018 decided that they wished to adopt him. The local authority – along with the foster carers – began the process of applying for an adoption order. In the meantime, the parents applied for permission for leave to oppose the adoption. The judge allowed submissions to be made by the parties in writing, and gave permission to the parents on 29 June 2020. 

In making the original decision, the judge took account of all the changes the parents had made. They had moved home, their relationship was no longer an abusive one, both had accessed treatment for their own problems including medication for low mood and had cut ties with other, risky members of the family. On balance, and mindful that the bar should not be set too high, the judge found that parents had made sufficient changes so that they should be given permission to oppose. The local authority appealed. 

On appeal, the Court of Appeal held that the judge had identified the correct legal principles and applied them, as most recently stated by Jackson LJ in the new and helpfully consolidating case of Re W (A Child: Leave to Oppose Adoption) [2020] EWCA Civ 16. In terms of the Judge’s conclusions, the Court held in that the judge’s own prior dealings with the case and knowledge of the family made him uniquely placed to deal with this case now: 

“Given the judge’s experience of the case and deep understanding of issues, I do not for my part think that it can be said by this Court that he was wrong to reach that conclusion [that the evidence was sufficient to show a change of circumstances]. I accept the submission that, having conducted contested fact-finding and welfare hearings in the care proceedings, the judge was, as Ms Ecob put it on behalf of the father, uniquely placed to evaluate whether the changes of circumstances asserted by the parents were sufficient. It is plain from the judgments in the care proceedings that he had a deep and detailed understanding of the history of this difficult and sensitive case, of the characters and conduct of the parents, and the needs of this little boy.

When he turned to the second limb of the two-stage process, the judge emphasised that what he was evaluating was not the prospect of Y being returned to the parents’ care but, rather, the prospect of the parents successfully opposing the making of the adoption order. His assessment of the second limb in that context as set out in paragraph 33 of his judgment seems to me to be a careful and balanced analysis. In short, he concluded that, having identified changes in circumstances sufficient to open the door, it was in the interests of Y’s welfare throughout his life to have another look at the question whether the need to preserve family relationships, in particular sibling relationships, continues to be outweighed by the greater permanency which adoption would bring.”

The Court of Appeal acknowledged that not every judge would have made this decision. This goes to the heart of what the court’s call the discretion question – that the trial judge will always have a wide ambit of discretion which, as long as the law is properly applied to the facts, will ensure that the judge is entitled to make their own decision. He was better placed than anyone. The Court also reminded parents that just because leave to oppose had been granted did not mean that they would be successful in opposing the adoption. 

Another unusual feature of this case was the participation of both parents at a video hearing in spite of being profoundly deaf. The parents had the benefit of sign language interpreters and intermediaries. The Court confirmed that when dealing with cases involving disabled litigants, the guidance in Re C (see my post on this case here) applies and careful thought should be given to ensure they can participate properly in the case. 

For Y, there will now be a final hearing on the application for an adoption order. The judge will listen to evidence and argument and decide whether to grant an adoption order. The court at that hearing will decide this with reference to Y’s welfare throughout his life. If the final decision for Y is reported, I will update this post with the outcome. 

Re JL

J was a young child of just 21 months. This case was an appeal of a decision of a judge to dismiss an application by JL’s grandmother to revoke a placement order made earlier on in the year. 

The local authority had been involved with J’s mother and his siblings since 2012, and concerns about domestic abuse between J’s mother and various partners led to J being subject to care proceedings by a local authority. J was placed in foster care at birth. J’s siblings were also made the subject of care proceedings and they were placed with various family members. The carer for two of the siblings was Mrs B. Mrs B is approved as a local authority foster carer. 

Several other people were assessed to care for J to no avail. The assessments of his parents and various family members and friends were all negative. At the time, Mrs B could not care for J as she did not have the house room for both J and his siblings. At the conclusion of care proceedings, the older siblings were to remain with their respective family members, whilst the Court found that there were no viable alternatives for J and therefore he was to be placed for adoption. Mrs B did not take part in the hearing and had decided not to put herself forward to care for J; the judge at trial called her position “unenviable” and described her decision as “very difficult”. The judge made a care order and a placement order. 

A few months after the placement order was made, Mrs B asked the court for leave to revoke the placement order as J had not yet been placed for adoption. She said that she could now look after J and that she had been hoping that somebody else would have been able to. Mrs B had managed to upgrade her accommodation so she would now have room for J. She said she had intended to make the application for revocation sooner but had understood that J’s mother might be trying to appeal. 

Mrs B’s application for revocation was supported by J’s CAFCASS guardian but opposed by the local authority. In a report, the guardian was clear that Mrs B had undergone a change in circumstances. The judge disagreed and dismissed the application for revocation. The judge:

“set out the history and correctly identified the legal principles to be applied when considering an application for leave to apply to revoke a placement order by reference to section 24(3) of the Adoption and Children Act 2002 and the relevant case law. He summarised those principles by reference to the established two-stage test, namely (1) whether there had been a change in circumstances since the placement order was made in February 2020 and, if so (2) whether, exercising his discretion, he should grant leave having regard to J’s welfare and the prospects of the application succeeding. He observed that Mrs B had been “caring admirably” for the two boys and described them as “thriving” in her care. He concluded, however, that there had been no change in circumstances since the making of the placement order. He added that, if he was wrong in that conclusion, he was

“entirely satisfied that any exercise of discretion must lead to the application for permission being refused because of delay, lack of prospects of success and holistic welfare considerations”.

He pointed out that J had been the subject of care proceedings throughout his 18 months’ life, far longer than could have been reasonably contemplated at the start of the proceedings, and that any further delay or protracted decision-making would be contrary to his welfare. He noted that no details of prospective assessments of Mrs B’s capacity to care for J had been produced, should she be granted leave to apply for a special guardianship order. Given the likely delays in obtaining such an assessment, exacerbated by the pandemic crisis, he concluded that any revocation hearing would not be determined until the early months of 2021. The judge recognised that he was disagreeing with the guardian’s conclusion but stated that her analysis had been directed at a reassessment of J’s best interests, that she had not asked the right questions, and that she had mistakenly conducted her analysis on the basis that the application was for leave to appeal rather than leave to apply to revoke the placement order.”

Mrs B appealed. It was argued on her behalf that the judge had made the wrong decision and a change in circumstances was sufficient to ‘open the door’ to revocation. When one considered the opportunity to be brought up in his birth family, it was argued that too much weight was given to ‘finality’. The CAFCASS guardian supported the appeal, commenting that mistakenly referring to an ‘appeal’ in her original report did not materially change her recommendations. The local authority opposed the appeal and argued, mainly, that the timescales involved in assessing Mrs B to care for J were too great. They argued that her relationship with J was limited and that J’s presence may be disruptive to his siblings in the home. 

The Court of Appeal allowed the appeal. They said this was a clear example of a case where there had been sufficient change and the prospect of J being brought up in his natural family should not be dismissed. This would allow J to be in touch with his birth mother and siblings, also. 

The Court reminded us:

“The law requires children where possible to be brought up in their natural families. Adoption is a measure of last resort. Mrs B is by all accounts caring for the two boys very well, notwithstanding their difficulties in respect of which she has understandably sought support from the local authority. In those circumstances, it must be in J’s interests at least to explore the possibility of being placed in her care.”

The Court also commented that whilst delay should be considered in every case, the delay in this case would only add six months of delay to a child who was not even two. Whilst it may be slightly harder for J to settle in an adoptive placement if the assessment of Mrs B is negative, the “disadvantages of delay in this case are manifestly outweighed by the potential advantage of securing for J a placement within his family and the prospect of a close and lifelong relationship with his brothers.”

Conclusion

English law treats adoption as a measure of last resort. These two cases show the law, properly applied, working to reinforce this important principle. Adoption is the ultimate interference in the human right of parent and child to a private and family life; these cases underline the importance at every stage of ensuring that all of the alternatives are explored before the court approves the irreversible cutting of legal ties between a child and their birth family, with all the consequences that this may bring.