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J and P v C and Another [2005] EWHC 1016 (Fam)

Application for adoption order refused, and mother’s applications to set aside care order and for contact adjourned.

J and P v C and Another [2005] EWHC 1016 (Fam)

Family Division: Charles J (25 May 2005)

Application for adoption order refused, and mother's applications to set aside care order and for contact adjourned.

This case concerned a child, born in December 2000, who was made the subject of a care order in July 2002 and was placed for adoption in March 2003. There were three applications before the judge: one for an adoption order, one to set aside the care order, and one by the mother for contact with the child. Although a district judge had directed that the application to discharge the care order should be dealt with first, the judge determined that the appropriate course was to consider all the applications together.

The principal decision was whether the child, who had been placed for adoption with the prospective adopters for just over two years, should (1) be adopted, (2) stay where he was under a different order, or (3) be moved as part of a plan to consider whether he should be returned to his mother. One of the key issues in making this decision was the effect of an anonymous complaint received by the local authority concerning the care given by the prospective adopters to their children, including allegations that they smacked the children.

The judge acknowledged that he was not the decision-maker as to the child's placement while the child remained in the care of the local authority, but it was within his remit to deal with the difference of view between the guardian and the local authority – regarding the prospective adopters' approach to parenting – and indicate his preferred way ahead.
The judge reviewed in great depth the written statements and oral evidence given by all the parties involved in the proceedings, including the psychologists who had seen the prospective adopters, the mother and the child; and he considered the areas of physical punishment and home education, and the prospective adopters' approach to them.

The judge found that the prospective adopters: had not given an essentially truthful account of their behaviour and attitudes in respect of physical punishment; did not accept that the child could be described as 'vulnerable'; and would be likely to remove the child from school, in favour of home education, which would not be in his best interests.

Accordingly, the judge concluded, in agreement with the guardian, that the child should be moved from the care of the prospective adopters as soon as was practicable: even though this course of action would cause distress to the child in the short term and therefore some emotional harm, it did provide the possibility of the child forming a secure attachment in the future with a parental figure in an appropriate placement, ie one where there was a good prospect of his needs being appreciated, addressed and met.

The mother's applications to set aside the care order and for contact would be adjourned.

Comment by Tacey Cronin, Albion Chambers

This story should become compulsory reading for all child care professionals, lawyers and social workers in particular. Every conceivable mistake is made, with the result that however disadvantaged the child was at the start of the proceedings it seems likely he must be worse off now. There is material here for many training days!!

The Courts very rarely revisit cases after final care orders are made on plans for adoption: we all have to tell our clients that once the order has been made, the Court has no power to manage the child's case or hold the local authority to contact arrangements if the adopters choose not to comply with agreements made pre-adoption . Here, the child was aged only 18 months at date of final care order – the best possible age to be placed for the adoption to succeed according to Triseliotis, Thoburn etc, but placement did not occur until he was aged 2 years and 3 months: almost immediately, there was an anonymous referral because the prospective adopters were alleged to have smacked the child, but it was only when the natural Mother applied to discharge the care order because her own circumstances had improved and the Guardian was reappointed the case came under proper scrutiny again. It is clear that the initial assessments of the adopters had been inadequate and that some of the expert advice had been superficial. It was not clear what the child's welfare now demanded, but he was already 4 ½ years at the time judgment was given.

Clear (and not unusual) messages were given by the Judge: case management must include looking at what is going on in the child's life, not just in the proceedings; if in doubt, legal advisors must seek directions early; the Court must do more than choose between competing proposals for orders to be made on a directions hearing; it should have been obvious at an early stage that no Court would dispense with the Mother's consent once the allegations of corporal punishment were made and all parties should have been making contingency plans; the independent social worker should have read all the background papers and not accepted the potential adopters own view of themselves.

Another warning, although not spelt out by the Judge, arises from the facts of the case: these adopters had already adopted two little boys and had a fourth child placed with them after this child had arrived and before the proceedings were finished: had social services been too easily satisfied that a family assessed as competent cares could take more children or is there a real dearth of adoptive placements?

Finally, Charles J conducts a detailed analysis of the credibility of some of the witnesses: forensic examination may be a luxury in some cases, but here it was plainly essential.

Read the full text of the judgment here