Family law, adoption and the rights of children

Children|Family|September 25th 2013

Royal Courts of JusticeSir 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.

Photo by  swanksalot via Flickr under  a Creative Commons licence

Author: Stowe Family Law

Comments(8)

  1. Karen says:

    Recommendation for a good Family Lawyer in London?

  2. Ray says:

    Interesting but does not go far enough. In an ongoing case a mother is allowed only 2 hours contact a month which has to be supervised as the LA feel and this is supported by that waste of space and public money CAFCASS that she might say something bad about the father who is unemployed, cannot be bothered to find a job, and gets Legal Aid. Although on a very low income the mother gets nothing. The judge rather than trying to help an unreprented mother, tells her to behave or get less contact. Welcome to a kangaroo court which makes a mockery of justice and fairness.

  3. Name Witheld says:

    please please is there any advice or help you can offer. I am a 22 year old female whos three nieces and nephews (2,5,7) on Tuesday last week we lost, as the judge ruled SEPERATION and ADOPTION. We were declined appeal by the judge and have about 20 days left before they get adopted and break both sides of their bioligical families hearts. In brief their parents (my brother) and his wife had a domestic violence relationship. Granted even though they would die for these three they were ruled out. But my mum their bioligical grandmother (51) applied to be the guardian, after raising five children single handedly herself and being a foster carer herslef ten years ago and got refused that as she was never aware of the violence in her son and daughter in laws marriage alongside the children are being labelled ‘too damaged’ and need individual care apparently, though we have school records and health reports to show they were 100percent fine before the went into foster care for SIXTEEN MONTHS since then their behaviour has been up and done. I myself their biological auntie have a copy saying i had an assessment that was approved to care for this children but the judge never called me in the 6 day hearing – i was never given a chance. There are also other grandparents , aunties and uncles all wanting to keep our precious little ones in the family so so desperately, yet the decision has been gave to not only put them up for adoption but for them to lose eachother and be seperated. We are all at our wits end in pieces helpless trying to get an appeal but have ‘no legal grounds’ before its to late forever and they lose a huge biological family who cherish them so dearly. I would really really appreciate help on this i have never felt this strongly or cared about something so much in my entire life , many thanks

  4. vob re says:

    Adoption should be the only solution when everything else fails.If this is Leeds it is unlikely they will l get adopted as they have already too many on their waiting list . And as many adoptions fail it is unlikely potential adopters will take on children who for one reason or the other are very difficult. My opinion is forced adoption is inhumane.
    If you have had a successful assessment you should have at least been called. It has been proven that the best for children is to be kept within the family.
    You need to get in touch with an expert as there is a ‘Human Rights’ issue. I would have thought that there would be legal rounds for an appeal due to change of circumstances if other
    family members came forth to look after the children. Record
    a letter to the County Court and The Social Services. There is a form you can fill in from the Courts with reference to applying to get it stopped on Human Right grounds.
    I

  5. Dana says:

    Has there been any changes? Social workers are still taking children at a rapid rate and putting them up for adoption via the courts, dismissing family members with unsubstantiated excuses why they can’t look after the child/children. What needed to be said, was no forced adoption, decent fair procedures pre court, mediation, explanations of the whole process up front not trying to manage as you go along! There really needs to be a total shake up of family law not tinkering with it.

  6. Name Witheld says:

    Please can you help my I’v just lost my Granson for adoption we been in court for eight months had no legal aid help my son was on drugs for twenty odd years his partner was on drugs to but she choose drugs over her baby we were challenged in court for our children’s up bringing my son was on drugs my daughter got pregnant at seventeen and my other son had a dirty house the judge said I could not put my own the right path in life how could I look after my Granson, they said my son was on drugs age 9 years not true and had evidence on all this case can you help this family get our Granson back to his blood family ware he belongs

  7. Name Witheld says:

    Please help stop the adoption of my Granson we are a good family for what I understand childrens act 1889 clearly states that children removed from parents should be placed with relatives and we have been passed over purely on speculation with no evidence I wood be great full for your support on this case

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