Flawed Placement Application #Adoption #HumanRights #fostering

This judgment should be an important reminder of why statutory regulation, guidance and caselaw exist.

Achieving what’s right for individual children based on a holistic non-linear evaluation of the options must always govern decision making. This judgment by HHJ Lazarus contains powerful and important reminders of the stakes in which we are dealing when we intervene in family life and why some situations require social work evidence with in-depth, expert knowledge.

See extracts below but do download and read the full judgement: A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020).

Judgment by HHJ Lazarus

1.       Fortunately, the outcome that I approve for this little girl is an agreed one.  The local authority has withdrawn its application for a placement order and its plan for adoption and proposes to continue to care for A in long term foster care under a final care order, with regular direct contact with her family which will be established at a minimum level in an order.  The parents, who initially volunteered A into foster care due to their recognition that they cannot meet her needs, agree that she should remain in long term foster care and have agreed changes to a final care plan and a contact order that reflect her needs.  The Children’s Guardian has shifted her position from an initial support for adoption to support for this amended plan, in particular having heard a number of issues raised in court and during the expansion of the social worker’s evidence during cross-examination.

Judgment by HHJ Lazarus
A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020) http://bit.ly/3aRCxL1 

Key issues significantly lacking or wholly inadequately covered

27.   Despite this fresh effort, it remained the case that key issues were significantly lacking or wholly inadequately covered, and in particular matters relating to: 

– A’s rich national, ethnic, linguistic, cultural and religious identities and heritage;

– the harms and losses of losing all legal connection and/or meaningful contact with her birth family:

– the nature of her birth family and the relationships it offers her with many siblings and cousins of a wide range of ages and in particular those near her own age, and their family-centred culture of maintaining close and meaningful relationships with her, both now and into the future:

–          the nature and degree of this family’s commitment to A, notwithstanding their admission of their current inability to cope with her developmental needs, and their commitment to co-operation with the local authority and any foster carer, and support for plans for A that meet her needs in long term foster care;

–          the nature and impact of A’s particular characteristics and developmental difficulties, especially in relation to her need for direct contact and, by contrast, her ability or inability to benefit from the proposed plan of a maximum of only two direct contacts per year, the use of life story work or book, the use of internet or other resources to support her complex heritage, and indirect contact;

–          balancing the specific advantages and disadvantages of each type of placement in a rounded and comprehensive consideration of her complex welfare needs.

THE LAW – APPLICATION FOR A PLACEMENT ORDER

71.   Certain requirements are stipulated for a local authority to be in a position to seek such a significant and powerful order.  In summary, a properly designated social worker must prepare a properly composed Child Permanence Report, which in turn must be considered and will be relied upon by the Agency Decision Maker, and who in their turn must undertake a decision-making process that properly complies with statute, case law and guidance.  That material, underpinning a potential application, should then be properly considered by the local authority’s legal team to ensure that it complies as required, before an application for a placement order is issued.  

72.   It is only when the local authority is satisfied that the child ought to be placed for adoption that the duty to apply for a placement order arises under s.22 ACA 2002.  A local authority cannot be so satisfied until it has made a decision to that effect under Adoption Agencies Regulations 2005 (AAR 2005) reg. 19, (Re P-B (Placement Order) [2006] EWCA Civ 1016, [2007] 1 FLR 1106). 

73.   Such a decision is no longer referred to an adoption panel but is to be taken by an Adoption Decision Maker (ADM) within the local authority, who must consider the child’s ‘permanence report’ (CPR) and medical reports on the child and his parents (AAR 2005, reg. 19, as amended).

compliance with regulations

CHILD Permanence REPORT AUTHOR: PRESCRIBED DESCRIPTION & QUALIFICATION

95.   Page 3 of the CPR specifically asks the author to confirm that they are suitably qualified under the Regulations to prepare this report.  There is a numbered footnote next to that question, suggesting that further information on that point was available to the author while completing the document.  The social worker’s response was “YES”.   The social worker has since explained that claiming that she was suitably qualified was simply an administrative error, an oversight.  She should have marked NO, as she does not have the requisite experience under the Regulations.

96.   When the local authority was asked at court on the first day of the November hearing whether the social worker was in fact appropriately qualified and to provide details of her direct adoption experience the local authority’s response was that she does not have the requisite experience but “was supervised”. 

Supervision

99.   I also note that in his statement the Director of Children’s Services referred to two individuals said to have supervised the social worker to the satisfaction of the relevant Regulations: her service manager and her assistant team manager.  He claims that the supervision involved: ‘initial planning… including identifying who needed to be seen and interviewed, reviews of previously completed CPRs to inform the process of completion of the index CPR, and discussions about the conclusions of the same.’

100. There are no details given of the capacity of either of these two individuals to fall within the relevant supervisor category, or of which of them carried out what supervisory tasks and exactly how that satisfied the regulations.  There are no notes or records provided of supervision sessions.  Tellingly, there is no assertion in his statement that either of them read the report or considered its contents beyond ‘discussions about the conclusions’.  Clearly, neither of them signed the CPR, even though, if supervision were being adequately conducted, they would have expected this to be asked of them.  

101. It is clearly possible that the local authority may have committed a criminal offence under section 94 Adoption and Children Act 2002 and the Preparation of Adoption Reports Regulations 2005, but I cannot conclude whether that is the case or not.  I note the Director’s refutation of this accusation.  This is not the tribunal in which a summary offence is tried.  I have not been provided with sufficient information to assist with any safe conclusion either way, nor would it be proportionate in the circumstances of this case to conduct an examination of all the background facts and the detailed nature of the supervision said to have been provided.

AGENCY DECISION MAKER’S DECISION – 

107. This is shockingly poor and in breach of the relevant law and guidance.  In particular:

–          The ADM failed to consider whether the social worker was permitted to prepare the report under The Restriction on the Preparation of Adoption Reports Regulations 2005. 

–          The ADM failed to identify any arguments for or against adoption or long-term foster care, save for A’s age, and failed to give any reason for the decision, save for the child’s age.

–          The ADM’s sole reason appears to amount to an orthodoxy or set policy based on age alone and showed the local authority had failed even to consider long-term foster care as an option at all.

–          The ADM failed to consider any of the factors in the welfare checklist save for A’s age. This excluded any consideration of A’s background and identity, the impact of her needs and developmental issues, her relationships with her relatives (not only her parents but siblings and wider family), and the value of those relationships continuing. 

Any decision that involves permanent separation of a child from their parents and their family must be based on evidence that is accurate and has been rigorously tested and checked. Justice for the children that we are working to help demands that quality assurance systems are rigorously applied.

Download the full judgement: A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020)