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Adoption myths and local authorities

The National Adoption Leadership Board reported last month that between July and September 2013 and April-June 2014 there was a 47 per cent drop in ‘Adoption Decision Maker’ decisions. These are made in the second stage of adoption where all checks on the prospective adopters have been completed and the panel have made their recommendations. Additionally, there was a 51 per cent decrease in new placement orders, and a seven per cent decrease in the number of children adopted from care. And the number of adopter families being approved has decreased by 14 per cent. The Adoption Leadership Board has attributed this decrease to comments made in the recent appeal court judgement Re B-S.

In this case, a mother’s two young children were removed from her care in February 2011. They were then made the subjects of final care and placement orders eight months later, in October 2011, granting the local authority permission to place them for adoption. Contact with the mother subsequently ceased in December of that year.

In April 2012 the children were placed with prospective adopters and the authority applied for adoption orders before Mrs Justice Parker in May 2013. The mother’s situation had significantly improved by that point and she sought permission to oppose the adoption order. Mrs Justice Parker refused leave to oppose the orders on the basis that it was entirely improbable that the mother would succeed in having the children returned to her care. Permission to appeal this decision was, however, granted to the mother by Lord Justice McFarlane and the appeal was subsequently heard by Sir James Munby, along with Lord Dyson the Masters of the Rolls and Lady Justice Black in July 2013. They unanimously refused the mother’s appeal but took the opportunity to clarify the approach which should be taken by the Courts and local authorities in this type of case.

Following comments such as “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 judgements”, “sloppy practice must stop”, “continuing lack of attention to what has been said in previous judgements necessitates our use of plain, even strong language” and “we make no apologies for having canvassed these matters in such detail and at such length. They are of crucial importance…too often they are given scant attention or afforded little more than lip service”, the Court of Appeal cited two essentials which must be considered by the Court when it is being asked to approve a care plan for adoption or make a non-consensual placement or adoption order, namely:

  1. Proper evidence form the local authority and the guardian; and
  2. An adequately reasoned judgment by the Judge.

The link between the comments made in the judgement in Re S-B and the current apparent reluctance to place children for adoption has since. been addressed by the National Adoption Leadership Board. They released clarification in the form of five ‘myth-busters’ and two ‘truths’.

Myth 1: the legal test for adoption has changed

The law has NOT changed. Adoption has always been a ‘last resort’, but this doesn’t mean that it is not the right course of action for some children.  If there are no other realistic and appropriate options available to the local authority then adoption may be required to meet a child’s needs. The child’s welfare is always the Court’s paramount concern, therefore if adoption is the only realistic option, then adoption it is.

Myth 2: to satisfy the courts, all alternative options must be considered

It is only the REALISTIC options that must be considered. The Court does not need or want to see an in-depth analysis of every option available or put forward by the family. They only need to consider those options that are viable. Again the child’s welfare is of paramount concern and the local authority must balance the need to explore options with the impact any delay may have on the child. The local authority’s response must be proportionate, always bearing in mind the needs of the child in comparison to the need to provide the Court will high quality, evidence based assessments of the realistic options.

Myth 3: if adoption is only appropriate where ‘nothing else will do’, foster care of special guardianship should be pursued instead

The words ‘nothing else will do’ do not mean that the local authority should opt for an option that does not meet the child’s needs or that adoption should not be considered because foster or residential care would work. The child’s best interests should always be at the forefront of every decision made. This goes as far as consideration of placing the child with their extended family, but this should only be an option when their emotional and physical needs would be met. Placing the child with their extended family will of course not always be the best option for the child. An exercise must be carried out that weighs the benefits of adoption against any loss a child may experience by severing the legal bond with their birth family. Simply put, after analysing options, if adoption is clearly better than any other option when considering the child’s emotions and physical needs, then it should be pursued.

Myth 4: because it is a ‘last resort’ planning for adoption must wait

Planning ahead is essential in this type of situation. Other options that initially were deemed viable may fall through, so it is in the child’s best interest to avoid any delay and to start the process as soon as possible.

Myth 5: the 26 week rule applies to placement orders

Placement Orders are not subject to the 26 week rule: it only applies to care and supervision orders. However, as previously stated, unnecessary delays are not in the best interest of the child. Therefore if the placement order can be completed within 26 weeks, this would be best for the child.

Truth 1: high quality assessment and evidence is essential in all cases

To echo the statements of the Judges, high quality, evidence-based assessments are crucial. Evidence placed before the courts should not simply be the history of a situation, but a clear analysis from the social worker and the guardian which considers, as stated above, all the REALISTIC options for a child. Provided the above is done, local authorities should not doubt the cases they are presenting to the Court. To support the above, training materials were launched in June of this year to support social workers when preparing evidence to present to the Court.

Truth 2: the judgements criticised some cases where the test for granting leave to oppose the making of an adoption order has been applied too harshly

The law is, and always has been, that the Court’s paramount concern must be the welfare of the child. This child’s welfare will always override the parents’ rights. Bearing this is mind, the Court of Appeal in Re B-S stated the two stage test for considering leave to oppose:

  1. Has there been a change in circumstances?
  2. If so, should leave to oppose be given, bearing in mind all the circumstances in the case and particularly a) the parent(s) ultimate prospects of success of resisting the making of an adoption order if given leave and b) the impact on the child if the parent(s) are or are not given the leave to oppose, taking into account his or her welfare throughout his or her life. The child’s welfare is, as ever paramount in this consideration.

Although the Judges in Re B-S criticised previous courts for applying the test too harshly, they did not change the test. They merely clarified and reiterated the point that the child’s welfare throughout his or her life is the main concern of the court, and that everything else comes second.

It is still to be seen whether the guidance will change the attitude of local authorities and whether adoption orders will rise again as a result. But the need for clarification of the law and applicable procedures was very clear. If the child’s welfare is to be the main concern of all those involved, we need maximum clarity in relation to the law, the procedures to be applied and relevant judgements – and no delays or confusion!

Read the National Adoption Leadership Board guidance here.

Shanika Varga-Haynes is a Senior Associate based at Stowe Family Law's Leeds office. She has a particular interest in domestic abuse cases and children work and has also been involved in external and internal relocation cases. Shanika is part of the adoption team.

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