President of Family Division inveighs against social engineering in adoption proceedings – Marina Wheeler

adoption
In the matter of A (A Child) v Darlington Borough Council and (1) M (2) F (3) GM and GF and (4) A (by his children’s guardian) [2015] EWFC 11 (“Re A”) – read judgment

In a scathing judgment, the president of the Family Division has condemned as “social engineering” a local authority’s application to remove a baby boy permanently from the care of his father and place him for adoption.

The case was, he said,

an object lesson in, almost textbook example of, how not to embark upon and pursue a care case.

In addressing these failings, Munby P identified “three fundamentally important points”.

The first point, vital for practitioners on the ground, is that findings of fact must be based on evidence, not suspicion and speculation. As the judge observed, material in local authority files is often second or third-hand hearsay. Although hearsay is admissible in care proceedings, if challenged, a local authority will have to establish its accuracy.

In this case, the original social worker’s “concerns” about the father were repeated and adopted by other practitioners (including the children’s guardian), without further enquiry. When the case reached court, that enquiry revealed what Sir James described witheringly as

a tottering edifice built on inadequate foundations.

Stripped of suspicion, speculation and hyperbole, the majority of the factual case collapsed and was reduced to familiar assertions that the parent “lacks honesty with professionals” or “minimises matters of importance”.

The second fundamental point is that a successful application for a care order must link the facts relied on to the threshold test, i.e., why do the facts asserted lead to the conclusion that the child is at risk of suffering significant harm?

In this case, the local authority thus had to show how the fact that the father had had sex with an underage girl of 13 when he was aged 17, affected his ability to care for his baby son some six years later. How did the social worker’s complaint that he “failed to acknowledge the immoral nature of the offences committed” support the assessment that his child was at risk of neglect?

The judge was equally unimpressed by the local authority’s “concern” about the father’s involvement with the English Defence League (EDL) – referred to in the social worker’s assessment as “a barbaric protestor group”. The fact (“if fact it be”) that the father was a member of the EDL (“probably only for a short time”) was, he said,

neither here nor there, whatever one may think of its beliefs or policies.

The social worker’s repeated reference to the “immoral aspects of the father’s behaviour”, prompted the judge’s third fundamental point that, in the “wise and powerful words” of Hedley J in Re L (Care: Threshold Criteria [2007] 1 FLR 2050:

society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent…some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.

In the same vein, as Baroness Hale explained in the celebrated Supreme Court decision In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33:

We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the state does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical and mental illnesses or who espouse antisocial political or religious beliefs.

In this case, local authority concerns also included an alleged “history of drug abuse”. Once probed, the evidence established the father “may have taken cannabis on occasions”. However Sir James observed,

the reality is that many parents smoke cannabis on occasions without their children coming to harm… [P]arental abuse of alcohol or drugs of itself and without more is no basis for taking children into care.

On the positive side, the father was recognised to love the child, to be capable of meeting his day-to-day needs and to have shown commitment in supervised contact. Taking account of the “greatly weakened” local authority case and “surveying the wide canvass”, the judge concluded

I can accept that the father may not be the best of parents, he may be less than a suitable role model, but that is not enough to justify a care order, let alone adoption.

Comment

Although the judgment makes no express reference to the Article 8 right to family life, it boldly applies the Strasbourg-inspired requirement (expressed by Baroness Hale in In re B) that those seeking to sever the ties between parent and child must establish that “nothing else will do”. Consistent with the child’s welfare, everything must be done to preserve the family. It is not enough to show that a child could be placed in a more beneficial environment. Some express concern that this approach thwarts adoption, to the detriment of the child.

Of course it is wrong to allow children to languish in care, being moved from carer to carer rather than being found a new permanent home, when it is clear that their parents are incapable of looking after them. But reaching this conclusion, given its profound and irreversible consequences for parent and child, requires decision-making of the utmost rigour.

Detractors of the Human Rights Act – and the Convention – focus invariably on obstacles to deporting foreign preachers of hate. It is possible to acknowledge such frustrations and but it is worth taking pause to contemplate that there is a good deal more to the Human Rights Act. In these cases, Article 8 is deployed to moderate the exercise of a draconian state power (what decision could matter more to a parent than the loss of their child?), and to provide those on the receiving end – especially the inarticulate or the unpopular – with the means to challenge its use. In an honest appraisal of the Human Rights Act, this line of jurisprudence must surely be counted as a plus.
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7 thoughts on “President of Family Division inveighs against social engineering in adoption proceedings – Marina Wheeler

  1. Is the same “rigour” also needed when a social worker decides, having been asked to prepare a welfare report in private family proceedings, to recommend sole residence with one parent, and a draconian refusal of direct contact for the other parent?

    Judging by this case
    https://johnallmanuk.wordpress.com/2013/05/29/two-year-olds-contact-stopped-with-homophobic-dad/
    apparently not.

    I am glad that Sir James Munby has wised up to how flimsy are the reasons children are losing both parents at once, or the second of two parents they lose, or they only surviving and still in their lives parent they have, in care and adoption proceedings. I remain to be convinced that he cares at all that a child can lose one parent, because his mum doesn’t like his dad any more, or vice versa, and the social worker takes the side of the would-be lone parent, and performs a character assassination upon the parent who doesn’t believe that one parent’s fickleness ought to deprive their love-child of his other parent.

    I would say that equally sloppy social work is doing far more harm in the context of private family law than it is in the context of public family law. From the child’s point of view, losing dad, and being stuck with an abusive mum who constantly runs down his dad, is almost as bad as losing mum AND dad, and being put up for adoption.

  2. It is (relatively) heartening to see the President of the Family Division acknowledge explicitly the dangers of hearsay, reliance on second and third hand ‘evidence’ and allegations which are neither examined properly or taken in the correct context but…
    As an expert witness, working in other contexts (such as the NHS) it is only too obvious that people build up ‘reputations’ in their notes/case files which follow them, sometimes for their whole lives. These reputations are based on a whole mixture of actual events, rumour, personality clashes, people appearing frightening due to factors beyond their control, and their actual presentation in the here and now is only a little part of how they are regarded and treated.

    One of the huge advantages of working as an expert witness in family law, prior to the FJR ‘reforms’ was that you could genuinely approach a family as an independent professional, and you could have access to original material from a wide range of different sources as well as seeing the family, including the children with the aim of providing the Court with an independent view.

    I am sure anyone who has worked as an EW will have encountered cases where previous reports (often by other professions such as Psychiatry or Psychology) on a family have been misread or misrepresented, where parents who have been ‘hostile’ during a Section 47 enquiry are then deemed unworkable with (even though the Bundle suggests they have worked perfectly well with other professionals) and where the family has been known to Social Services for so long and had so many social workers and interventions over the years that it is almost impossible for the LA to stand back and understand why this has occurred.

    Leaving aside the reality (which is the case in any profession) that some experts will have been less than thorough in their work, the existence of an independent professional who is trained to take a systemic view and trained to be able to forensically analyse a whole range of evidence from a variety of sources in coming to a view, had the potential to help avoid the snowball effect where the Local Authority fall into the trap (for whatever reason) of gathering evidence which backs up their case rather than evidence which allows an objective consideration of the family/parent.

    The President of the Family Division has been fully supportive (as far as I am aware) of using Social workers and Guardians as the experts in the vast majority of care cases and it is hard to imagine many parents will see either profession as ‘independent’ (making it hard for SW and Guardians themselves, as they are much more likely to encounter parents who are anxious, suspicious and hostile at the involvement of ‘Social Services’ than the independent expert is). The ‘reforms’ have also supported a huge reduction in Bundle size – one bundle is the aim and so the chance of seeing any paperwork that is not a summary of multiple opinions is minimal, and it is more and more common to not disclose medical reports etc even in an expert assessment, so there will be an increasing reliance on ‘self-report’ instead of a proper analysis of self-report against the existing records. LAA caps which seem to have become set in stone for many Solicitors/Courts allow for 2-3 hours reading – and this could be in a case where a parent has themselves been in care and where the history is massive, and highly relevant. In any other setting where life changing decisions are being made (eg secure mental health) these decisions are made over time, by a qualified multi-disciplinary team, who can request access to many forms of information and who can undertake many types of assessment with the person in question. In ‘reformed’ Family Law, a family can conceivably have a social work assessment which is done to a template, and may involve the social worker having to read and interpret historical information from a range of professionals, and a limited piece of work by CAFCASS (and both professions have increasing workloads and severe time pressures) and that is it.

    Can that really be called progress?

  3. This is not about sloppy social worker, quite the reverse. This is now what social workers both in child protection and disability are trained to do.

    The are now enforcers.

    Paid to enforce the Childrens Act to obtain care orders, mainly for the under 4’s, and the MCA for the disabled and the old.

    They use a standard pro forrma, which they apply, to target the family, with standard intervention issues, finding evidence, incorrect, or deliberately created, or spun, to support neglect- inappropriate/no clothing, medical treatment, feeding, personal care, safeguarding issues in home- unhygienic, dangerous, insecure, emotional abuse,- isolating, shouting. insufficient personal space, lack of boundaries etc etc.

    Read my blog by googling finolamoss particularly post on social care and creating evidence for intervention, and you will see how they do it.

    Carers and education packages, now under the new SEN ECH statements, spy for such evidence and even create it see blog post ‘Red mark the size of a Fist’.

    Why ? Because babies, young children, and the disabled, are being used as lucrative commodities.

    A minimum adoption fee of 28,000 is paid to the adopting authority, for every baby/ child adopted, regardless of the difficulty of adoption.

    Under the MCA, the mentally disabled and disadvantaged, can be rendered incapable, their parents neglectful and abusive, and cut out of their lives, and up to 4,000 per week claimed for zero hour, itinerant care, in what is termed independent living . All in a 2 hour hearing in the Court of Protection.

    Similar amounts can be claimed for the old.

    ,

  4. http://www.mirror.co.uk/news/uk-news/mum-who-throat-cut-brutal-5164409
    We are seeing the claim of a ‘Right to family life’ in Human Rights Act leading to more judgments putting women and children at risk of death, injury and abuse. Family Courts are actually forcing women to stay in contact with dangerous and sometimes violent men- even child abusers- because the men are entitled to ‘a family life’ (ie. contact with the children) NO MATTER WHAT. These are not ‘flawed’ human beings. These are bloody DANGEROUS people. The basic safety of a mother and her children should ALWAYS come before a father’s so called rights to ‘family life’.

    I used to wonder how 3 women a week in this country could by murdered by their ex-partners with hundreds more violently assaulted. I used to wonder how on earth so many thousands of children could be sexually abused by men in this country. Now I know exactly how. The men retain their sinister influence on the lives of these women and children, forever- with the blessing of the courts no less!. These judges are endorsing violent men’s continued contact with ex partners who have fled abusive relationships! Yes, women who have fled to protect their young children from witnessing the worst examples of ‘family life’- verbal and physical assaults on mum, aggression, violence, drug abuse- you name it.

    It’s not just the women and children at ‘potential serious risk’ from angry, controlling, obsessive men, abusing drugs and alcohol who are being cheated out of their human right to personal safety by these judgments. These men may also have personality disorders with episodes of dangerous delusions and paranoia brought on by their substance abuse because they are failing to manage their mental illness responsibly (it’s not the illness it’s the irresponsible behaviour towards it that counts). But STILL the safety concerns of the women are downplayed…. and his rights to ‘family life’ take precedence!

    In domestic violence cases controlling men with NO PREVIOUS record of any physical violence actually have a worse record for the murder of women than the ones who beat up women regularly. But the courts ignore this fact and say you can’t actually prove a controlling man is a serious risk .Despite the death toll that says the exact opposite. You have to be killed to be proved right then?

    Nope. It gets even worse than exposing them to ‘potential serious risk’. Let’s expose women and children to an established risk of death too!!!! In this case referred to above, the man wanting contact with his child may have been but weeks away from a life sentence for the rape of a child under 13 years old and shows no remorse for it, according to social workers. And unbelievably the judge seems to say- “So what? He had sex with a 13 year old girl when he was younger. That doesn’t mean he can’t be a father to his child” That tells me more about judges’ and societal attitudes to the grooming and abuse of young girls by older men that it tells me anything else.(NO wonder Rotherham and Saville happened) It also smacks of a complete disregard for the law when it applies to protecting the safety of females (just toss the law aside when it’s convenient hey). The words used say it all. He did not ‘have sex’ with a 13 year old girl. As an adult he had illegal sex with an underage child. If she had been maybe a few weeks younger then I believe the law of the land would have said that was child rape and he could have been looking at a life sentence! That this is a dangerous man who has abused a child in the past and may pose a risk to his child in future is probably a good assessment from social workers.Paedophiles are known to show little remorse for their crimes think they have done little wrong and to repeat their offences.

    Even worse than that, it would appear from this horrific article in the Mirror (see link) that women and child victims of violent crime are even forced by the Family Courts to remain in contact with the very men who DID commit the most abhorrent crimes upon the family- in front of the children involved. Crimes that scarred their mother physically and mentally for life and traumatised the children. The very worst violent crimes imaginable. You could not make it up. That’s not ‘family life’. What on earth is that teaching children about a woman’s place in the family, in our society and how she is protected by the law.

    What about a woman’s right to live free from fear and physical violence???!!! What about a child’s right to be free of a life soiled by the influence of a paedophile, or a man who slashed up his mother, any complete monster of a human being?It’s a national disgrace.

  5. More simply in UK adoption without parental consent (forced adoption) is according to guidelines from the President “a last resort when nothing else will do”;As most other European countriesdo not tolerate forced adoption and find other solutions those remedies must be available in uk and not be used therefore adoption is not actuallyy a last resort.In my view it is a crime !
    Judge Mostyn got it about right as follows:-
    )MR JUSTICE MOSTYN said”PARA 35. The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious.”

    Link – http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

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