Northern Ireland

Background

The respondents, Mrs AR and Mr BR, the parents of 11 children, had been known to the Trust, with which they had had a difficult relationship since 1995: BR being particularly obstructive and at times threatening to social workers, AR aiding and abetting his behaviour, both having been assessed as of below average intelligence which may have contributed to their failure to understand the role of the Trust. Weir LJ noted that he had dealt with the family between 2008 and 2013 and had been involved in repeated applications in respect of the children, including allegations that BR had sexually abused his daughters, FR and GR, which, in 2007, led to interim care orders being made in respect of both girls and boys. At that time, Weir LJ had concluded that BR had engaged in sexual activity with GR on a number of occasions. BR initially refused to move from the family home but when he did so, in 2008, MR was returned to the care of AR by the Trust. At this time Mr Q, a consultant clinical psychologist, assessed the parents’ intellectual capacity and personality and concluded that the family’s situation ‘is not likely to change in the future regardless of additional inputs’.

The pattern of poor co-operation between the Trust and BR continued; there were escalating problems involving several of the older children. MR continued in the care of her mother notwithstanding that she had been made the subject of a full care order in 2011. Several of the older children, also subject to care orders, were placed away from the family home including JR, who was placed in a specialist unit in England from which he absconded in October 2012.

The removal of MR from the care of AR

In October 2012 MR was suddenly taken from her school by social workers and placed with foster carers without any prior indication of a plan to remove her from parental care. No member of her family saw her again for ten days and she never returned to her mother’s care. The purported justification was that social workers would have had to ask the police to search the family home for the possible presence of JR and that they did not want MR to witness this activity. As Weir LJ commented:

A moment’s thought indicates that this excuse is fatuous because the search for JR would not have taken more than at most an hour and could easily have been accomplished while MR was away from home at school or in the temporary care of a social worker for the requisite period.

However, Weir LJ was concerned that:

It must have been apparent to the decision-makers within the Trust that records made prior to the removal of MR were not such as to provide support for that decision. When the care order had been made it had been no part of the care plan for MR that AR should undergo therapy as a condition of having MR placed with her and, as both Mr Q and Professor W had pointed out, the likelihood of AR benefiting from any therapeutic intervention of a psychological or psychoanalytic nature was remote in the extreme by reason of her inherent intellectual and personal frailties.

Judicial review proceedings against the Trust

AR brought judicial review proceedings against the Trust seeking a review of the decision and the return of MR to her care. Ultimately, in May 2014, the Trust consented to an order that MR be declared to have been unlawfully removed, though no order was made for her return as the judge involved was not aware of the history of prior family proceedings.

The subsequent course of events

The Trust freeing proceedings in respect of MR were initially defective and withdrawn but recommenced in March 2015. Meanwhile MR remained in the care of Mr and Mrs S, contact with her parents proceeding more or less satisfactorily with some disruption due to difficulties between social workers and parents and to AR’s unwillingness to meet the foster carers. As the parents withheld their consent, a hearing was held in 2015 at which the following matters were confirmed: that MR had been wrongfully removed from the care of her mother; no good reason had been given for the failure to return her to her mother; but that MR had become very well settled in the family of Mr and Mrs S. Weir LJ recalled concluding that the welfare of MR was best served by her continuing to live with the S family but he had not been satisfied that adoption was the appropriate course and had serious concerns about the actions of the Trust in removing MR and thereafter failing to return her. Accordingly he postponed judgment in order to avoid any more disruption to the life of MR, to see whether her life continued on the same even keel and to allow time for AR and BR to come to terms with the fact that the likelihood was that MR would remain with the S family.

Significant events since the hearing

Having reviewed the matter on a number of occasions since the substantive hearing, Weir LJ drew attention to three significant events.

First, was an application by the Trust to seek to prevent AR from attending MR’s service of First Holy Communion, ostensibly on the basis that her presence at the church would be disruptive and upsetting for MR. No credible basis for this assertion was put forward, so he had declined to prevent her attendance and AR did attend, remaining in the background and following the advice of the accompanying social worker.

Second, was the meeting Weir LJ had with MR who he found to be a lively and engaging child, outgoing and polite in her manner and very well able to express her wishes and feelings in an age-appropriate way. She had described her life with Mr and Mrs S, their own son and the family dog in terms that indicated clearly that she had a settled and happy life in that family and had a wish to be adopted by them. One sad note arising from the meeting was MR’s expressed unhappiness that her mother had attended her First Holy Communion, which she had found embarrassing. Weir LJ commented that AR may have been to an extent responsible for this as until the time of the First Holy Communion she had refused to meet Mr and Mrs S.

The third – and in some ways the most important event – was the dignified and realistic reaction of AR, expressed in an affidavit sworn by her in April 2017, which included the following:

This is breaking my heart as I did everything I could to try to get MR back to my care and I did still hope that there could be a slow return home for her but it can’t happen now. It is too late … she wants to remain living with Mr and Mrs S. I was holding out, hoping that despite all this time MR could come home to me but after hearing what she wants and how unsettled a discharge application would make her, I know it would do nothing to help MR …

Adoption or long-term fostering?

Weir LJ advised that the S family had assured the Trust that MR could remain with them as an adopted child, which would be their preference, but in long-term fostering if not. He noted that the benefit of adoption in this case would amount to a greater sense of ‘belonging’ on the part both of MR and of Mr and Mrs S, but he had to consider whether that benefit was sufficient to overcome the obstacle presented by the absence of parental consent.

The law

Beginning by accepting that the Re B ¹ decision had caused considerable alarm among family practitioners because it was thought to have erected a new and much higher hurdle for forced adoption, Weir LJ suggested that in reality it simply reasserted the role of the proportionality principle. He drew attention to an address given by McFarlane LJ to the Family Law Bar Association National Conference in October 2016 ² in which the latter concluded that the effect of Article 8(2) of the ECHR is that:

The outcome for the child, as well as being that which meets her welfare requirements must also be ‘necessary’ for, in short terms, her ‘protection’. In other words it must be ‘proportionate’ to the need to protect her.

Conclusion

Summarising, Weir LJ noted that at the time of the removal AR was managing better, had the support of her adult daughters and was without the constant presence and level of interference previously exerted by BR. He was satisfied that the absconding of JR was used as the initial pretext for the needless removal of MR. He was also satisfied that having removed MR, the social workers, some of whom must have been at a senior level, ‘hit upon the idea of falsifying Trust records so as to create the impression that the care of MR by AR prior to the removal had not been good enough’. Despite his best efforts he had been unable to ascertain who from within the Trust pool had ‘perpetrated this outrageous deceit and dishonestly sought to foist it upon the court’.

Weir LJ pronounced himself satisfied that MR was well settled within the S family where she would continue without any necessity for adoption. He found that the test for adoption against the will of birth parents had not been met and held that in all the circumstances of this case it would be illogical and an abuse of language to hold that AR and BR were unreasonably withholding their consent. In a postscript, he added his hope that contact arrangements would be made which could give MR ‘as clear an appreciation as possible of her extensive birth family’ and expressed his view that ‘it will be of great importance for MR in making future sense of her life experiences to know that AR did not fail to care for her as best she could, did not abandon her and is very much genuinely concerned for her present and future happiness’.

Held

Freeing application refused.

Comment

Social workers in this Trust, including those at a senior management level, clearly behaved badly and brought no credit to their profession. It would have been perverse to have granted a freeing order. Adoption in such circumstances could only compound an injustice while adding nothing to the welfare of the child.

Kerry O’Halloran, lawyer, social worker and academic, prepared these notes.