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Important Lessons to be Learned from BT and GT (Children: Twins - Adoption) [2018] EWFC 76

David Bedingfield, barrister at 4 Paper Buildings analyses the judgment of Keehan J in BT and GT (Children: Twins—Adoption) [2018] EWFC 76 and highlights the lessons to be learned for all child care professionals and lawyers.

 












David Bedingfield
, barrister, 4 Paper Buildings 
 

Lawyers involved in the care and adoption system in England and Wales often marvel at the work of social workers and their managers employed by local authorities. We regularly see utterly selfless, hardworking professionals seeking to improve the bleak prospects faced by children in an under resourced care system, often facing criticism by lawyers and judges when they appear in court, no matter the effort expended, the lives improved.

When we see the protests outside the Central Family Court and the RCJ, where distressed parents and their supporters complain of social workers who have "stolen" children and placed them for adoption, our first thoughts may be: that the protestors just don't understand because in every case a court will have examined what has occurred and approved a plan that is in the best interests of the child. Social workers do not mislead. Local Authorities do not fail to disclose relevant documents in cases where adoption orders are sought.  Finally, Local Authorities have systems in place to make certain the care plans that are approved by courts are actually implemented.

The facts revealed in Mr. Justice Keehan's judgment in the distressing and tragic case of BT and GT (Children: Twins—Adoption) [2018] EWFC 76 (29.11.2018) call such assumptions into question and should send shock waves throughout local authority children's services departments. The case should make all involved in the care system question some of our certainties. The following is not disputed:

a. A social worker some 12 months after the care proceedings had ended selectively quoted from a key professional report, omitting a critical section which completely changed the import and meaning of the quoted section thereby changing the meaning of the professional's recommendation.

b. That report was then used to justify separating twins, restricting their contact, and eventually placing each in separate adoptive placements.

c. Social workers without consultation or effective oversight failed to implement key aspects of a care plan that had been approved by the Court.

d. Social workers omitted key information from documents sent to prospective adopters, presenting to prospective adopters an inaccurate description of the children and

e. A local authority's management team, including the Independent Reviewing Officer assigned to monitor the children in care, failed to uncover the lies and omissions and failed to protect the children.

All care cases are distressing, but this one defies belief. The twins subject to these adoption applications were born in 2010. They have three older siblings, all under the age of 18. They have two older paternal half siblings and two older maternal half siblings. In 2014, the eldest maternal half sibling of BT and CG left the family home and made allegations against her step father (the father of BT and CG). He was convicted in 2016 of sexually abusing children, and was given a sentence of 21 years. The mother was also convicted of neglect and given a suspended sentence. All five children of mother and father (BT and CG and their three older siblings) were made subject of care and placement orders in 2015. Neither mother nor father participated in the care proceedings.

The care plan for the twins was not unusual in a case where it was clear that it would be difficult to place the children for adoption. The court approved a plan whereby the Local Authority would search for an adoptive placement for the twins for 9 months. After that, the Local Authority would instead seek a long-term foster placement for the twins. No one contemplated, of course, that the twins would be separated. The care plan was approved on 19 March 2015.

Hereford City Council, the Local Authority that held parental responsibility for the children, proceeded over the next two years to cause even further harm to the children, and in the process also cause harm to two completely innocent prospective adoptive families.

The Local Authority's search for adopters for the twins should have ended after 9 months but it did not and on 10 April 2016, 13 months after the care plan had been approved, a team manager made the decision to place the twins separately for adoption. The next day the plan was endorsed by a Looked After Children Review panel. It is likely that the team manager and the LAC Review panel had never seen the approved care plan because the plan was not included in the computerized bundle of documents sent to the panel for review.

The allocated social worker in July 2016 placed in the computerized bundle what was termed a "sibling attachment assessment." The actual written report was dated some three months after the children had been separated, and after the decision had been made to look for separate adoptive placements for the twins. The Local Authority contended to Keehan J that what had occurred is that an "oral report" was given by the allocated social worker regarding the attachment of the twins prior to the decision to separate the twins. The July report was simply the social worker's written version of her earlier oral report. Keehan J had some difficulty accepting this version of events.

The Local Authority then carried out a search for separate adoptive placements. During that search, the Local Authority failed to disclose to prospective adopters the detailed needs of the children, which were immense. They failed to disclose the details of their challenging behaviour and past life experiences. One member of the social work team deleted references to the children's difficulties from the Child Permanence Reports and the Adoption Support Plans. The Independent Reviewing Office, whose job it is to protect the children from flawed decisions by the Local Authority, failed to take any steps to uncover what had occurred. Keehan J was not even certain the IRO had read the final care plan.

The July "report" by the social worker who had carried out the sibling attachment assessment purported to quote from an assessment of the twins conducted by a consultant psychologist. The social worker quoting the report, however, omitted two sentences from the report which wholly altered the actual recommendation and conclusions reached by the psychologist. The psychologist had said that in his report that because the children were twins, the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together. The social worker in the July report used the psychologist's assessment to support a conclusion—separation of the twins—that the psychologist had explicitly rejected.

Since the conclusion of the care proceedings in 2015, the twins had been placed together with long-term foster carers. Those carers, however, had difficulties coping with the twins' often difficult and challenging behaviour. The carers gave notice to the Local Authority on 28 April 2016 that they could not care for both children.  Both children were developmentally delayed. They had suffered significant physical and emotional harm while in the care of their parents, and they had remained in the parents' care from 2010 to 2015. They were damaged children.

In March and May, 2016, the children were placed in separate placements, wholly contrary to the approved care plan. The twins had twice weekly contact until 16 January 2017, when contact was reduced to once each fortnight. The twins saw their older siblings for a goodbye visit in on 27 February 2017 and 1 March. Contact with those siblings then stopped. The twins had contact with each other later in March. They did not then see each other again for seven and a half months. A contact visit was arranged on 27th October 2017, after which contact stopped for more than four months. Another visit occurred on 4 March 2018.

In any event, after the children had been placed with prospective adopters, applications for adoption followed. HHJ Plunkett noted that the two adoption applications were for twins who had been separated, and he set the matter down before Keehan J. It is an understatement to say that Keehan J was not best pleased by what he found.

Prior to the adoption application the Local Authority had first sought to terminate the placement of BT with his prospective adopters under section 35(2) of the Adoption and Children Act 2002. The Local Authority issued the application in November, 2017, on the basis that the care given BT by the prospective adopters had caused or exacerbated the child's behavioural difficulties. The Local Authority then sought to withdraw that application, though there is no mechanism set out in the act to permit the unilateral withdrawal of the termination notice by the Local Authority 1.

Keehan J ordered the twins to be assessed by the Anna Freud Center.  He made further directions regarding applications made by the siblings of the twins, and he set the matter down for hearing over 5 days.

However, on the second day of the hearing, counsel for the Local Authority told the Court that for reasons unknown, the Local Authority had failed to disclose some 200 pages of clearly relevant documents to the Court or to the parties. Contained within those documents were the various reports from the care proceedings that revealed just how damaged the children were. None of this information had been provided to the prospective adopters.

The matter was adjourned for a day to permit the parties to go through the documents.  The failure to disclose the documents was the last of a long list of Local Authority failures in this case. As set out below, those failures would prove costly.

The experts from the Anna Freud Centre believed that the harm caused the children by removal from carers to whom they had become securely attached would have a disastrous effect on them in the long term. The experts believed the children would be unlikely to recover from this harm, no matter the placement they are given in the future. The children were beginning to accept these two families as their forever families, the experts concluded. They believed it would be catastrophic to end those placements now.

Keehan J asked the experts to consider the legal effect of separate adoptions: The two twins would no longer be brother and sister if orders were made. Both experts concluded that the twins each needed a legal family to provide for them and to look after them after they had turned 18. An adoption would provide this forever family; Special Guardian Ship orders would not.

The Children's Guardian also supported the adoptions. He noted that the children had now been with their prospective adopters for 18 months. The expert evidence, in the view of the Guardian, was unanswerable.  Keehan J felt compelled to follow the experts' advice.

The analysis by Keehan J of the appropriate legal tests inevitably focused on the impossibly difficult task of determining what is in the best interests of a child who has been separated from his or her birth family in ways that will cause that child harm in the future. Should the Court seek to repair the damage by returning matters to where they were before the Local Authority's errors meant the twins were separated? Keehan J pointed out that either way forward would cause the twins harm. His task, as ever, was to find the least worst alternative.

Keehan J sought guidance from dicta from both the current and most recent Presidents of the Family Division. He pointed out that while Courts struggling with determining the best interests of the child often point to the undeniably strong bonds afforded a child by the child's birth family, the final determination must focus on the child's well-being at the time the decision by the Court is made. In other words, in that awful phrase one often hears, "we are where we are."
 
The approach Keehan J took to determine the welfare decision is clearly one approved by the leading authorities. In his view the evidence of the experts regarding the likely damage caused to the children by removal from their present carers tipped the scale in favour of the status quo.  He therefore made the adoption orders that were sought.

However, that was not the end of the matter. It was clear to Keehan J that the actions by Hereford City Council had breached rights of the children and their adopters protected by Article 8 of the European Convention for the Protection of Human Rights. Hereford City Council's social services department had undergone a significant personnel change in the last two years. The new director, Keehan J noted in his judgment, was seeking to act in a transparent way to admit to past errors and remove those responsible. The social worker who had altered the reports and made the decision to separate the twins, still employed by the Local Authority when proceedings began as a locum social worker,  had her contract terminated. The social worker had not given evidence and had therefore not been given an opportunity to explain or provide a defence. Keehan J therefore did not name the social worker. The new director and her assistant cooperated with representatives of the children and the adopters to agree a statement of facts regarding the breaches of the children's and the adopters' human rights. That statement is set out as one of four Annexes to the Judgment 2.

Keehan J set the damages under Article 8 of the ECHR at £20,000 for each of the twins. The prospective adopters were awarded £5000. The Children's Guardian asked the Court to direct that the Local Authority pay the costs of the children. Keehan J clearly considered doing so, but in the end he refused. He noted that the Local Authority during the proceedings had been open and honest and in fact had admitted all of the breaches. The failure to disclose the 200 pages of documents was "troubling," Keehan J noted, but he sought to follow the principle set out by the Supreme Court in Re T [2012] UKSC 36, affirmed in the case of Re S (A child) [2015] UKSC 20.

Keehan J felt that in all the circumstances of the case before him, it would not be right to order the Local Authority to pay the legal costs of the children incurred during the adoption application. He noted that the Local Authority would be responsible for the costs associated with the Article 8 claims, and Keehan J believed it wrong to impose further costs for the adoption application.

The judgment by Keehan J is required reading by all involved in the care system. At the very least, the judgment affirms the following:

1. Judges in care proceedings must determine the best interests of the child at the time of the hearing. The child's current reality is the starting point. There is no assumption that the child's birth family is the appropriate placement or in the best interests of the child. There is no "right" that trumps the command in the Children Act 1989 and the Adoption and Children Act 2002 that the welfare of the child is the Court's paramount consideration.,

2. Local Authority care plans must set out with particularity what will occur in the future. Those care plans must be included in the bundle of documents that will be considered later by social workers and review panels and Independent Reviewing Officers. Those care plans may only be changed after a full review by social workers and the IRO. It is likely that expert assessment is required if siblings are to be separated or if children are to be removed from long-term placements against the wishes of the carers.

3. Local Authorities must be transparent with regard to all decisions made affecting children in their care. Meetings must be minuted. Local Authorities must set up systems that ensure there is regular review of care plans regarding children in care. Those care plans must be followed, unless the welfare of the child requires they be changed. If they are changed, reasons must be clearly set out and supported.

4. Local Authorities must provide to prospective adopters all relevant information regarding the child. In particular, information regarding the damage the child has suffered in the care of his parents must be set out. The children in this case were developmentally delayed. They had been severely neglected, and they had suffered significant emotional and physical harm as a result of that neglect. Adoption agencies must include that information in all circulars sent to prospective adopters.

1 Keehan J noted the legal difficulty of reading the statute to permit the unilateral withdrawal. He solved the problem by considering the case from the perspective of the Administrative Court hearing a judicial review application, and found that the decision to issue the application in the first instance was irrational. He dismissed the application on that basis.
2 Annex 1 sets out the factual outline of the case, and sets out the failures of the Local Authority and the breaches of the Article 8 rights of the children. Annex 2 sets out the failures in the original care plan, and the subsequent failures to manage the care of the children. Annex 3 sets out the breaches of rights of the adopters of BT protected by Article 8 of the European Convention. Annex 4 sets out breaches of rights of the adopters of GT protected by Article 8.


22.1.19