Abstract
Inherent jurisdiction as an alternative to secure accommodation orders
Re T (A Child)
Court of Appeal (Civ) McFarlane P, Moylan & Peter Jackson LLJ
4 October 2018 [2018] EWCA Civ 2136
A Welsh local authority decided that a 15-year-old girl in their care needed to be placed in secure accommodation, for reasons which are not recorded in the case reports. However, they found ‒ as apparently do so many local authorities ‒ that there was no place available in any children’s home approved for secure accommodation. They therefore made an application to the High Court for the exercise of the inherent jurisdiction to allow them to place the girl in another form of accommodation with various provisions in place to restrict her liberty. Mostyn J at first instance heard that the girl was consenting to the restrictions and was persuaded that he could only make an order to restrict her liberty if she did not consent. He found that her expressed consent was unlikely to endure and so he was able to make an order. The child appealed, challenging the need for the ‘enduring’ quality of her consent.
Held
The Court of Appeal considered the statutory scheme for secure accommodation under section 25 of the Children Act 1989 and the equivalent section, section 119 in the Social Services and Wellbeing (Wales) Act 2014, which does not include the consent or otherwise of the subject child as a relevant consideration. They also considered the case law on breaches of Article 5 of the European Convention on Human Rights, which provide that no one shall be deprived of his liberty except in accordance with a procedure prescribed by law. The accepted European and British case law sets out three elements which must be present before a breach of Article 5 can be found: (1) a confinement in a restricted place for a period of time; (2) a lack of valid consent; and (3) that the state is responsible for the deprivation of liberty. The President emphasises that it is important that any alternative scheme should mirror, as closely as possible, the statutory scheme. The statutes are clear that court authorisation is required before a child can be deprived of her liberty, even if she is of full capacity and/or her parents clearly consent. The child’s consent is relevant in that it represents her wishes and feelings, which must be taken into account as part of the welfare checklist and may be relevant if necessary to decide whether or not the circumstances amount to a deprivation of liberty under Article 5. The President distinguishes between the making of an order which authorises a local authority to place a child in secure accommodation or its equivalent and those cases which are concerned only with a deprivation of liberty application.
Having ruled that there was no requirement to establish that the child did not consent to the placement in secure-type accommodation, the issue of whether her apparent consent was genuine and enduring did not need to be considered.
Comment
The court described the application as an established parallel process to the statutory scheme. Although the figures for the number of inherent jurisdiction applications made simply because there are no registered secure accommodation placements are not available, the court quoted Holman J in a case in 2017 describing having heard six applications in a week with two more to go. There were also no figures available for the disparity between the number of secure accommodation places registered (255 in England and Wales) and the demand for them, although in this case the local authority described having found one bed in a secure unit that week which was being chased by 35 applicants. The Association of Lawyers for Children was joined to the appeal and raised general concern about the emergence of a parallel process, asking whether there is a disparity in the various protections and safeguards afforded to children being placed under each system. The President has referred his judgment to government departments for consideration as the concerns raised were outside the range of this appeal. Secure accommodation, its provision, inspection and use by local authorities is carefully and strictly regulated and it must be a matter of significant concern if these safeguards are being bypassed or diluted simply because there is insufficient capacity to provide a registered secure placement for those who need it.
Adoption or long-term fostering
Re: B-P (Children ‒ Adoption or Fostering)
Court of Appeal (Civil) Underhill, Floyd & Peter Jackson LLJ
20 September 2018 [2018] EWCA Civ 2042
This case concerned five children in a family that had had extensive local authority involvement before the children were removed into foster care in September 2017 as a result of emotional neglect. The three younger girls, aged 18 months, three and four, were placed separately from their half-siblings. Each had some level of learning difficulty and all were showing the consequences of early neglect, but were thriving in foster care and having contact with their parents and siblings. The judge at first instance granted the local authority care orders, but refused placement orders on the younger children. He preferred the option of the children remaining in the long-term care of their current foster carers and continuing the relationship with their family. He was concerned that there was no evidence about the availability of adoptive placements for all three and there was a risk that the children might be separated.
Held
The Court of Appeal found that the judge had failed to give any weight at all to the ‘evidence of potential benefits for the children of adoption…in terms of commitment, security and permanence’, and did not consider the potential drawbacks of long-term foster care. He did not consider the children as individuals. The youngest was only 18 months old and the effect of long-term foster care and continuing legal membership of a family from whom she had been removed as a baby had not been assessed by the judge. His conclusion that adoption would be harmful to the children was described as ‘so striking as to require considerably more underpinning than appears in the judgment’. The case was remitted for reconsideration before a different judge.
Comment
Adoption without parental consent is a process which periodically receives public criticism and there has recently been some debate about whether it remains an appropriate permanence option. It is useful to have a clear steer from the Court of Appeal that there are real advantages to adoption as an order and some difficulties with long-term fostering as an alternative. In each case and for each child, the realistic options must be weighed carefully and without preconceptions about the advantages and disadvantages of one or the other. The Court of Appeal suggested that a psychological report be considered to provide a focused analysis in this case. However, they did not ask for more evidence of the likelihood of an adoptive placement being available for these children, although the judge had identified this as being a lack of evidence. The Court of Appeal suggested that this was expecting too much of a local authority when such evidence is often unavailable before placement orders are made. This realistic approach could inform practice in other courts. In some areas it has become almost routine to ask for a statement from a family placement team about the availability of adopters and the likelihood of a child being placed for adoption. This appears to be a hangover from the days of freeing orders, when the probability of adoption was a relevant consideration. It is not one of the factors which the statute requires a court to consider in making a placement order, and courts sometimes seem to forget that the placement order is a gateway order; if the child’s welfare requires adoption, the fact that finding an adopter might be very difficult should not be a reason not to open the door to the possibility. Courts will also need to bear in mind that the most comprehensive source of information on potential placements is the Adoption Register, which will not be available after March 2019.
Child relinquished for adoption
Re A (Relinquished Baby: Risk of domestic abuse)
High Court (Family Division) Cobb J
27 July 2018 [2018] EWHC 1981 (Fam)
A is the fifth child of his mother (M). She had been a child in and out of care herself and had a troubled upbringing. She had two children as a young woman and relinquished them both for adoption. Two more children remained in her care, but have been subject to child protection concerns, as have the mother’s younger siblings and the children of her older siblings. M had a brief relationship with the father (F) which ended as a result of his abuse. F did not know that M was pregnant but continued threats and harassment after the end of the relationship and this had been reported to the police. F had two other children who lived in another part of the country, having been taken there by their mother to escape F’s abuse and in respect of whom there was a no contact order. M asked for A to be placed for adoption immediately, initially citing practical reasons but then giving the father’s name and her concerns about how he would react. The local authority sought a declaration that they could make arrangements for A’s adoption without notifying F or members of the extended family, using Part 19 (rule 19.1(2)(b)) Family Procedure Rules (FPR) 2010, as contemplated by rule 14.21 of the FPR 2010.
Held
The court received a report from the police confirming the concerns about F, his multiple convictions for domestic and other assaults, and their assessment that M and her children were at high risk from him. Cobb J set out the established principles to be considered as: (i) each case depends on its facts; (ii) the outcome in this case is exceptional; (iii) the paramount consideration is the welfare of the child; (iv) the court must have regard to the welfare checklist in section 1 of the Adoption and Children Act 2002; (v) the court must have regard to the wishes and feelings of the child’s relatives; (vi) respect must be given to the mother’s wish to arrange a confidential and discreet adoption for her child, but the mother’s wishes must be critically examined and are not decisive; (vii) Article 8 rights are engaged, but the degree of interference is less when a parent wishes to relinquish their child; (viii) any adoption involves an interference with family life, and can only be ordered where necessary and proportionate; and (ix) thorough analysis of the options is necessary, but ‘analysis’ is not the same as ‘assessment’ and can be carried out even if the birth family are unaware of the process. Weighing all the factors, the court came to the conclusion that the father and wider family should not be informed of A’s birth and the local authority could make adoption arrangements without further consultation.
Comment
Children being relinquished for adoption are not a frequent occurrence and many social workers are only involved in such cases once or twice in their careers. Many of them will involve mothers who do not want either their family or the father to be told of the child’s birth. These put children’s services in the position of balancing the child’s interest in growing up within their birth family against the mother’s wish for confidentiality and her right to make decisions for her child. It is useful to have the principles to be applied restated, and also to be reminded of the possibility of making an application to court for a declaration. While such an application should not be routine, in difficult cases it will be better to apply early on rather than risk the court ordering investigation of other family members at the point of application for an adoption order, when the child will have been placed for some time. The application is under Part 19 of the FPR 2010 and can be made as a stand alone application without care, placement order or adoption proceedings being issued. It can also be issued without naming a respondent. The use of this procedure may help to reassure mothers and encourage them to provide background information at an early stage. Too often mothers refuse to name a child’s father, possibly claiming rape or an anonymous encounter to avoid the risk of children’s services contacting the father. The impact of this on the child’s identity can be very difficult for a child to hear and should not be part of their life story unless accurate. It will be in the child’s best interests for a mother to feel able to provide as much information about their family and background as possible without that information being used to compromise her confidentiality or thwarting her intention of having her child adopted.