Abstract
Revocation Of Placement Order
N (Children: Revocation of placement orders)
Court of Appeal, Peter Jackson, Baker & Andrews LLJ
17 November 2023 [2023] EWCA Civ 1352
Two children, then aged three and four, had been removed from their parents’ care during proceedings in 2021. The court found that the children had been exposed to significant domestic violence and that their mother had failed to support actions to protect them. Placement orders were made and the children had a goodbye visit with their mother in March 2022. Prospective adopters were identified and introductions began. Before the children moved to the adopters’ home, the mother applied for leave to revoke the placement orders. Leave was granted, unopposed and the application to revoke was set down for hearing. The mother has made significant changes in her life, including complete separation from the father. The judge found that although significant changes had been made, the children now required skilled parenting and the mother would be unable to meet their needs. He refused the application and also declined to direct a further independent parenting assessment. The mother appealed.
Held
The burden of proof is on the mother to show that it is not in the interests of the children to maintain the placement orders. It is not enough to show that progress has been made and that a return to parental care might be realistic. The evidence in a revocation hearing will be different from that given in care proceedings because findings have already been made in the care and placement order proceedings. In this case, the children had not seen their mother for 18 months at the time of the first instance hearing and had been introduced to their prospective adopters. They were confused as to why they were not moving in with them as expected but continuing to have contact. The court had to make a welfare decision as to whether the possibility of a return to the mother’s care was strong enough to justify abandoning the adoption plan at such a late stage. In this case, the judge had weighed up the likelihood of the mother successfully completing all necessary stages before reunification could be considered, against the impact on the children of delay, uncertainty and losing their matched adoptive placement. The Court of Appeal expressed sympathy for the mother, who had made great progress, but she was not yet able to meet the children’s needs and ‘their childhoods are slipping away’. The appeal was dismissed.
Comment
Although many parents make an application for leave to apply to revoke placement orders it is rare that leave is granted and a fully argued revocation hearing takes place. This judgement of the Court of Appeal makes useful reading for the background and principles of applications to revoke placement orders. It will make very difficult reading for parents who may have made, as in this case, significant progress to a point where there may be a realistic prospect of being able to care for their child in the future. Children’s circumstances and needs change, and it may not be in their best interests to halt an adoption placement plan in order to hold open the possibility of reunification.
Right To Bury A Child
H (A child)
Court of Appeal, Macur & Stuart Smith LLJ & Sir Christopher Floyd
4 July 2023 [2023] EWCA Civ 995
H was a ten-year-old child who was born prematurely and with genetic encephalopathy. Her parents separated when she was a baby and she was cared for by her paternal grandparents, who became her special guardians in 2017. She died of natural causes after a year in hospital. At the time of her death, H was the subject of care proceedings initiated as a result of allegations against her father made by two half-siblings.
After her death her parents could not agree on what should happen to H’s body. Her father and paternal grandparents wanted to bury her in their family plot in Bangladesh, but her mother wanted her cremated and the ashes buried in the UK. The mother later changed her position because H was a Muslim and cremation was not acceptable. The dispute over the place of burial remained. The judge who had dealt with the care proceedings arranged a hearing on the issue the day after H died and ruled that there should be no delay in decision-making (in order to comply with Islamic rules on the timetable of burial) and that it would be ‘wholly wrong’ to make any order for funeral arrangements against the wishes of the grandmother, who had cared for H for most of her life. He granted letters of administration jointly to the paternal grandparents and the father, which would allow them to make their arrangements to take H’s body for burial in Bangladesh. The mother filed an appeal out of hours that evening.
Held
The judge at first instance had compromised the mother’s right to a fair hearing by listing a summary hearing so quickly. Although the issue required ‘speedy resolution’ it did not ‘demand instant determination’. The Court of Appeal allowed the mother’s appeal and immediately proceeded to a rehearing. The court considered the rules of intestacy, which would make the mother and father equally entitled to letters of administration, and whether this hierarchy should be displaced in view of the grandparent special guardians. The court took the view that H’s primary attachment was to her grandmother and that the paternal family had a plan which would meet H’s religious needs in her afterlife. Her mother, although she had not seen H for many years until very shortly before her death, retained parental responsibility and a biological link with H which could not be peremptorily dismissed. However, the longstanding special guardianship order (SGO) and the special personal relationship that H had had with her grandmother allowed the court to give precedence to the grandparents and to grant letters of administration to them.
Comment
The right to make funeral arrangements for a child is not something that comes up in discussions when deciding to make an SGO, but there have been other cases where a child subject to special guardianship has died and disputes arise. An SGO does not create a permanent legal relationship between the carer and child and comes to an end at age 18. The right to letters of administration on intestacy (every child will die intestate as children cannot make a will unless they are on active service in the Armed Forces) follows a strict order of precedence and special guardians are not included on that list. A relative who becomes a special guardian does not move out of their place on the list and the parents will have priority for letters of administration, regardless of the reality of the relationship they had with their child or why the child was made subject to an SGO. In the event of a dispute, the special guardians will have to apply to the court to displace the parents and make decisions about a funeral and about disposal of the child’s body.
Child In Care: Name Change
Re C (Change of forename: Child in care)
High Court Family Division, Cobb J
9 November 2023 [2023] EWHC 2813 (Fam)
C was an eight-month-old boy whose mother had significant mental health difficulties. Three older siblings had been removed from her care and C was subject to care proceedings from birth. Initially the mother gave C her father’s first name, then changed it to another male name when he was about six weeks old. A month later she registered his birth under the name Mia. The local authority’s care plan for C was for him to be placed with his paternal grandmother and her children (including C’s father). The mother was opposed to placement with the paternal family, claiming that the father had raped her and so C should be fostered or adopted elsewhere if he could not return to her care.
The local authority applied for permission to change C’s name back to a boy’s name because it feared he would suffer significant emotional harm through ‘ridicule or teasing’ impacting on his self-esteem. The father and paternal grandmother supported the local authority’s application. The Children’s Guardian did not agree that C would be likely to suffer significant harm by having a usually female name, but supported a change of name if C was to be placed with his grandmother. The risk of harm was based on the grandmother’s total opposition to the use of the name Mia and that it had the potential to be harmful in C’s daily life.
Held
The court followed Re C (Children) [2016] EWCA Civ 374 in which the Court of Appeal approved the use of the inherent jurisdiction to prevent a mother naming her child Cyanide. The naming and registration of a child is an exercise of parental responsibility. The local authority has the power to exercise parental responsibility for a child in care, and to restrict the parent’s exercise of their parental responsibility. There are some decisions that are such fundamental interferences with the parent’s Article 8 rights that a local authority should not use their powers under the Children Act 1989 but should refer the issues to the court. This procedure is most often used for children needing risky or life-changing medical treatment, but Re C accepted that there may be rare cases where it would be appropriate for decisions about a child’s name. Where a parent proposes to use a name that ‘goes beyond the unusual, bizarre, extreme or plain foolish’ and the local authority believes that the name itself may cause the child significant harm, it would be proper to invoke the inherent jurisdiction of the court.
The judge in this case considered that there was a diverse and changing range of names used in today’s multicultural society, and that the court should consider the ‘indefiniteness of gender’. Against that backdrop, the choice of the name Mia for a boy was not sufficiently extreme to justify court intervention and C was not likely to suffer significant harm as a result. However, if C was placed with his paternal family, who were completely opposed to the name Mia, there was a risk that his name would be a source of conflict and confusion which could cause C significant harm. The court made an order allowing the local authority to re-register C with one of the names that the mother had used for him before choosing Mia, but only if their care plan for placement was accepted at the end of the care proceedings, and Mia would be retained as C’s middle name. If C was not placed with his paternal grandmother, there would be no reason to interfere with his mother’s choice of name and he would remain Mia.
Northern Ireland
A Health and Social Care Trust v A Mother and A Father: In the matter of three children, C4, C5 and C6
The High Court, McFarland J
Delivered 13 December 2023
Introduction
This was a Trust application for care orders in respect of three children (C4, C5 and C6, aged five, four and one year old, respectively) and freeing orders in relation to the younger two. There were seven children in total, all of whom had been removed from the care of their unmarried Irish Traveller parents. The parents had maintained a transient lifestyle with periods spent in England, Scotland, Northern Ireland and the Republic of Ireland. The involvement of social services on both sides of the border with the family had been based around ongoing concerns about chronic neglect and serious safeguarding risks.
The Proceedings
In May 2022, C4 and C5 were removed from their parents’ care and interim care orders granted in respect of both in June. At this stage the mother was seven months pregnant with C6 and after her birth an interim care order was granted permitting removal of the child on her discharge from hospital. The Trust issued freeing proceedings in respect of C5 and C6 in October 2023.
The Mother’S Application Under The Child Protection Hague Convention 1996
As a preliminary issue McFarland J dealt with an application dated October 2023 to exercise the court’s jurisdiction under Article 8 of the Convention in respect of C4, C5 and C6, and to ‘transfer’ decision-making in relation to their best interests to the Republic of Ireland. He found that as each of the children was habitually resident in Northern Ireland at the time when the Trust issued proceedings, and had remained within the jurisdiction since then, the High Court was properly seised [legally in possession] to deal with the issues. However, he noted that under Article 8, if the court considered that the Republic of Ireland ‘would be better placed … to assess the best interests of the child’ it could request that the Republic assume jurisdiction. He considered that Black LJ had offered useful guidance when he had commented that in such situations: ‘What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility.’ 1 As there was no evidence before the court to suggest that the authorities in the Republic of Ireland would be better placed to assess the best interests of any of the children, the application was refused.
Threshold
Relevant threshold information had been agreed between all parties and a document to that effect had been signed by both parents. This made reference to the parents themselves being known to TUSLA (the Irish family care agency) during their own childhoods. The three older children (C1, C2 and C3) had been removed by the courts in the Republic of Ireland from the parents’ care on a permanent basis. The underlying difficulties arose from a lack of provision of basic care, poor supervision, a dirty and dangerous home environment and severe neglect. There were issues concerning drug misuse and criminality with an inability of either parent to take advice. During the period 2018–2022, the parents maintained a transient lifestyle throughout the British Isles and at times moves were undertaken to avoid social services involvement. When located in Northern Ireland in May 2022, a community paediatrician had highlighted significant dental decay, with C5 requiring extraction of 20 teeth.
Given the evidence, McFarland J was satisfied that the Trust had proven that C4 and C5 were both suffering significant harm while in the care of their parents and the harm was attributable to the care being given to them. He was also satisfied that C6 was likely to suffer from significant harm from the care that very probably would have been given to her by her parents if she had remained in their care.
The Applications For Care And Freeing Orders
McFarland J explained that the Trust was seeking care orders for each child: the care plans for C5 and C6 were adoption, with associated applications for freeing orders; the care plan for C4 was long-term fostering. Both parents submitted that their aspiration was that all seven children would be rehabilitated into their care, but there was a recognition that rehabilitation was not a realistic prospect in the foreseeable future. As the care plan for C4 was long-term fostering and was not controversial, McFarland J focused on the issue of the adoption care plans for C5 and C6.
He began by stating that the law is very well established in relation to care plans of adoption. The court must be satisfied that the plan is a last resort and whenever there is no other realistic option for the child or, in the words of Lady Hale, ‘when nothing else will do’.
2
He noted that this approach accords with Article 8 and with the principle recently expressed in Strand Lobben v Norway
3
that: Family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and if and when appropriate, to ‘rebuild’ the family.
McFarland J explained that the assessments had proceeded on the basis that this couple, though unmarried, intended to continue as a couple, but it had also been necessary to consider their individual capacities to parent the children should their relationship break down. Accordingly, a third consultant clinical psychologist reported in January 2023 on both parents. It was noted that when assessed separately the mother was more positive and co-operative, but that the father was unco-operative-operative. The mother could be rigid and inflexible in her own approach, but less so than the father. McFarland J considered that this may be partly due to the pressure exerted by the father. It was clear to the judge that the father would not have the ability or skills to parent any of his children on his own. The mother, on the other hand, had displayed a more positive engagement both with the various assessments and with the Trust. She appeared to be more committed to the children but had longstanding and deep-seated issues arising from significant adverse childhood experiences. McFarland J considered that she would struggle with all aspects of parenting and would require support from a network around her which would have to be augmented by professional support as there was little evidence of any adequate family or friendship network. However, there was little evidence that she would avail of any professional support, and in the circumstances, he considered that she too would not have the ability or skills to parent any of the children on her own. He therefore concluded that neither parent, on their own or as a couple, would be in a position to safely parent any of the children and that rehabilitation of any child into their care could not be achieved in the short- to mid-term. He also noted the lack of extended family support and drew attention to the fact that none of the four children in the Irish Republic had been placed with a family member.
In the absence of any realistic family placement, and as rehabilitation to the parents was not feasible in the short- to mid-term, McFarland J was of the view that there was no alternative to a permanent placement ‘with strangers’. He alluded to a ‘together or apart’ assessment, carried out in January 2023, which had concluded that placing the three children together, even if that could be achieved, would not be in any of the children’s interests, in particular because of C4’s very complex needs. It emerged that there should be two placements, one for C4, who was currently well settled with his intended long-term foster carers, and one for C5 and C6 together. As to why C4’s care plan was not adoption, he explained that this was because this complied with the well-established approach of always seeking out the plan with the least intervention in the family life of the child and the parents. In addition, he suggested that it was reasonably clear that C4’s care would present challenges for any carer (parent, foster carer or adoptive parent) and placement options would therefore be extremely limited within the adoption sphere. He added that any emotional impact on C4 of a perception by him of being treated differently to his sisters (C5 and C6) should they be adopted, would be unlikely to manifest itself to any significant degree.
McFarland J advised that the Trust’s care plan of long-term fostering for C4 was based on very solid evidence from various reports and assessments and had the support of C4’s guardian. There was no real opposition from the parents as both recognised that rehabilitation of C4 to their care was impossible at this stage. He therefore approved the care plan and the application for a care order in respect of C4.
Regarding C5 and C6, the judge considered that the care plan of adoption required more analysis, particularly the elimination of all other realistic options, but ultimately revolved around long-term fostering or adoption. He began by observing that both girls were well settled in their placement, which was the intended adoptive placement should the court make the necessary orders. Acknowledging that the differences between fostering and adoption, and their impacts on a child, were well established, he referred to Lady Black’s observations in Re V that ‘I do not think that fostering and adoption can, in fact, be equated in terms of what they offer by way of security.’
4
She had then gone on to highlight some of the material differences:
Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to ‘feel’ different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement. Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time. Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (Article 53(1) Children (NI) Order 1995). The contact position can, of course, be regulated by alternative orders under Article 53 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact. Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).
McFarland J added that ‘given the severe impact of adoption on family ties, the Trust must show that it is both necessary and proportionate’ and to this end, it had conducted an options analysis in respect of C5 and C6 which weighed up the proportionality of the proposed interference with family life. Without setting out in full the positives and negatives in the proportionality exercises, he noted that one of the negative factors was the potential for either or both parents to undermine the placement should it not have the permanence of adoption, which he considered to be a particularly relevant factor in the context of contact arrangements. He noted also that the guardian had carried out her own analysis, stating that C5’s and C6’s outstanding need for security and stability needed to be addressed, and permanency care planning work should proceed as an urgent priority and without delay. She concluded that their needs would be best met with the legal security that only adoption could bring. McFarland J expressed his support for the approach and for the conclusions of both Trust and guardian: Adoption is in the best interests of both children. It is a plan of permanence that significantly impacts on the existing family ties but taking everything into consideration I believe it is both necessary and proportionate.
Are The Parents Withholding Their Consent Unreasonably?
McFarland J observed that ‘reasonableness’ was an objective test, requiring the court to consider the circumstances of each of the parents but to endow each with a mind and temperament capable of making reasonable decisions.
5
It was important to acknowledge that a reasonable parent could legitimately still reject adoption even if this was in the best interests of that child. However, as Lord Denning MR had warned:
6
I must say that in considering whether [the parent] is reasonable or unreasonable we must take into account the welfare of the child. A reasonable [parent] surely gives great weight to what is better for the child. [The parent’s] anguish of mind is quite understandable; but still it may be unreasonable for [the parent] to withhold consent. We must look and see whether it is reasonable or unreasonable according to what a reasonable [parent] in [the parent’s] place would do in all the circumstances of the case.
McFarland J was clear that: … in this case the welfare of C5 and C6 would weigh heavily in the consideration of a reasonable parent. The reasonable parent would also acknowledge their own inadequacies, their lack of capacity or willingness to change, and their inability to take on board professional advice concerning basic parenting. A reasonable parent would take into account the disengagement between the parents and their older children C1, C2 and C3.
He could see no real factors that a reasonable parent would weigh in the balance against adoption such as a grievance as to the way the parents had been treated. Any fair analysis of the interaction between social services and the parents would recognise that the complaints of the parents lacked substance and that any significant issues related more to the conduct of the parents. He was satisfied that the Trust had shown that a parent endowed with a mind and temperament capable of making reasonable decisions would consent to the adoption of both C5 and C6. He would therefore dispense with each of the parent’s consent.
Contact
McFarland J considered that the conduct of the parents during contact, which remained fully supervised, raised concerning issues. Neither parent was capable of appreciating the harm caused to the children, neither adjusted their conduct despite advice and warnings and both declined to sign a contract drafted to manage their conduct. The attendance at contact by the father had been erratic. By way of example, at one contact session the children were each presented with extravagant gifts that included a Manchester United football kit for C4, who was told it cost £140; in addition, at the end of the contact, he was handed £45 in cash by his parents. Consequently, all the children were reacting in a negative fashion, with the carers reporting emotional upset before and after contact. Whether the conduct of the parents was designed to deliberately undermine the placements or was based on a very low base of parenting skill, coupled with an inability or unwillingness to take on board the most basic of advice in relation to very straightforward issues, was unclear. McFarland J commented that ‘the extravagance of these gifts, the bias in favour of the male child, the monetising of the gifts, the promises of further largesse, and the presentation of £45 of cash to a five-year-old child’ displayed significant parenting deficits and indicated that the regularity of contact could not continue at its current level. He considered that the care plans of permanence, particularly adoption for C5 and C6, required a reduction in the regularity of contact. He noted that the Trust proposal was that C5 and C6 would have contact with C4 once a month. Contact with the other siblings in Ireland had not commenced but would be kept under review. C4 is scheduled to have sole contact once a month with his parents for one hour. The judge stressed that the Trust must take steps to stop presents being provided, except on obvious days such as birthdays and Christmas, and all presents should be modest in nature and age appropriate. Parental contact with C5 and C6 should reduce gradually to once every two months and remain at that level until any adoption order was made. Thereafter, the proposed contact would be twice a year, subject to review. Noting that the contact arrangements had the support of the guardian, McFarland J added his concern that given the experience of the parents’ relationships with their older children, there was ‘a high probability that either or both parents will become disinterested and then just drop out of the lives of each child’.
Held
Care orders were issued in respect of all three children, approval was given for the respective care plans for each child, C5 and C6 were freed for adoption and the consent of each parent was dispensed with.
Comment
While there can be no faulting the reasoning and the outcome, it is disappointing that there is so little information on the children concerned and the lack of any reference to the cultural identity dimension – so often a matter of importance to the European Court of Human Rights – is quite surprising. It is always helpful to be reminded of the distinction between long-term foster care and adoption but the lack of any reference to the paramountcy principle is again surprising.