Sir James Munby only became President of the Family Division in January but he has certainly made his voice heard across legal circles in the eight months since then.
In May he warned that people should only be sent to prison for contempt of court in open court. In August he discussed the impact of legal aid cuts, leaving many people caught up in serious family cases reliant on uncertain pro bono representation.
And now the President is making waves with his views on adoption and care proceedings. Earlier this month, hearing an application for a far-reaching injunction in a contentious care case, the former barrister repeated a favoured observation of his:
“…with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years.”
He may have made this observation before, but it is one I think that bears repeating and pondering too, by anyone involved in the family justice system. Sir James is making the simple, salient observation that family court rulings regarding the separation of children from their families will affect the people involved for the rest of their lives. Since the abolition of the death penalty, the courts can make few more serious interventions – that is a very resonant observation.
Given his refusal to take a casual approach to care and adoption orders, it was perhaps not surprising to read further comments on the topic from Sir James. In the recent case of Re B-S, he expressed grave worries about the inadequacy of many adoption applications, concerns which, he said, were held by other judges too.
Sitting at the Court of Appeal with Master of the Rolls Lord Dyson and Lady Justice Black, Sir James declared:
“We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.”
Considering the implications of the recent Supreme Court judgement In The Matter of B ,the President drew out three key points for the family justice system:
*That children’s interests, paramount in law, include being brought up their biological family if possible.
*That the courts are obliged to consider all possibilities when considering adoption or care orders.
*That support available to the child’s natural parents should be fully considered by the courts when making their rulings.
Sir James also emphasised the need for adoption plans to properly analyse the case both for and against adoption, and to present proper evidence. He quoted Lord Justice McFarlane in his criticism of a ‘linear’ approach taken by some judges, “whereby each option, other than the most draconian, is looked at in isolation and then rejected”, with the result that the “most draconian”, ie adoption, is then seen as the most viable for the child or children, “without any particular consideration of whether there are internal deficits within that option.”
The President is sounding a very clear warning here. In their hurry to protect the genuinely vulnerable, have local authorities and even some judges become too casual about separating children from their natural families? The acceleration of adoption has been a clearly stated policy of the present government and measures designed to achieve this end were included in the Children and Families Bill published in February. Many hard-pressed children’s departments in local authorities have no doubt rushed to meet this government emphasis on more and speedier adoptions, but a box ticking fixation on adoption as the default solution for all troubled children presents clear dangers. No one wants to see innocent youngsters trapped in adoptions that weren’t really, truly necessary, cut off from their natural families.
Of course adoption is the right choice for many children from deprived and strife-torn homes. But it is the also most drastic choice, permanently severing the legal links between the children and their natural families. If a relative – a grandmother, aunt, or uncle – wants to care for a deprived child, why not let them do so, thereby letting the chid remain within his or her natural family?
And what about the parents? Non-resident parents – the ones they do not live with – can win custody in the face of adoption and care plans, although it may not be an easy process.
A recent reader comment, from Fabrizio, is worth quoting in full here:
“I’m a father myself and I battled through the courts to win custody of my 12 month old son, but the circumstances were very rare as my son was the victim of severe neglect and was hospitalized several times shortly after he was born. Social services noted that the threshold for significant harm had been met and before I stepped up to the plate, the option for adoption was talked about.
During my court battle, the mother had the full support and services of legal aid since she was unemployed, and since I was working and earning from home, I wasn’t entitled to anything (unbelievable). However the court ruled out the option for adoption once I made my plans clear, and after 8 agonizing months of fight with the support of social services and CYPS and with medical reports, I was granted full custody of my son with mother having every other weekend visitation.
So as I said, I think it takes a very rare case like mine for the courts to make the decision of granting fathers full rights, it can happen and I do believe we’ll see more of this in the future.”
And what about the resident parents themselves, the ones whose problems have led to the adoption or care proceedings in the first place? If they genuinely want to change and could realistically do so with the appropriate support, letting them continue parenting could, at least sometimes, be the best thing for the child. As ever in family law, the child’s interests come first.
Every family, every parent and child, is different. In the complex arena of family law, we should always be suspicious of the ‘one size fits all’ approach.