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Sibling Assessments in Care and Adoption

Judith Pepper has delivered presentations with Professor Daniel Monk to the Judicial College on the issue of siblings in care proceedings and adoption

 

Judith Pepper, barrister. 4 Brick Court

Practitioners in public law proceedings will have experienced an increase in focus on sibling relationships in care proceedings.  As set out in the seminal report Siblings, contact and the law: an overlooked relationship?, the majority view across the interview sample was that 'sibling assessments' have become more common in recent years, with some professionals explaining the increase as resulting from wider awareness of the significance of sibling relationships. 1 There is no requirement to conduct a sibling assessment (sometimes referred to as a 'together and apart' assessment) nor any binding guidance as to how it should be undertaken.  The report concluded that there is no consistent national method for assessing sibling relationships currently embedded in social worker training or in practice. 2

The most common method of assessment referred to in court proceedings and in research 3 is the good practice guide called Together or Apart: Assessing Siblings for Permanent Placement, written by Jenifer Lord and Sarah Borthwick 4.  A revised and extended guide was published recently, Beyond Together or Apart: Planning For, Assessing and Placing Sibling Groups by Shelagh Beckett  5.  The original guidance consisted of 44 pages, the new guidance is some 145 pages plus appendices, possibly as a demonstration of how this issue has evolved.  The latest guidance contains forms including those designed to be used in the observation and assessment of brothers and sisters in foster care, or who may be placed for adoption.

The issue of siblings in care proceedings is one which has evolved in the past few years, with a much greater focus on it in care proceedings than in the past.  Practitioners need to adapt to this and ensure that they are live to this particularly when considering sibling assessments. This article aims to highlight from case law some of the issues that have arisen with poor quality assessments.


The lack of proper sibling assessment at time when decisions are made

In the case of BT & GT (Children: twins - adoption) [2018] EWFC 76, Mr. Justice Keehan granted two applications for adoption in respect of twins who had been place separately. He criticised the 'utterly appalling' failings of the local authority which had led to their separation.

The care plans stipulated a nine-month search for a joint adoptive placement and thereafter a three-month search for a joint long-term foster placement. The local authority took the decision to separate the twins a little over a year after final orders were made. There were admitted breaches of human rights.

Interestingly, Mr. Justice Keehan granted permission to intervene in the proceedings to the twins' three older siblings, all under 18.

The then allocated social worker undertook a sibling attachment assessment. The report, approved by the then team manager, was dated some three months after the decision had been made to place the twins separately for adoption. It was asserted that the social worker gave an oral report on this issue. There was no note or minute of the manager's decision for separation. The court had had no explanation why it took three months to write up the assessment.

One of the findings in respect of the human rights breaches of the local authority was:

"No formal or approved sibling assessment at the time of separation and the subsequent assessment approved in July 2016 was inadequate".

This was a case in which Mr. Justice Keehan said that he had struggled with the concept that a court could find it in the welfare best interests of twins to place them separately for adoption.

In paragraph 93 of his judgment, he said: Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT's lives.

Of note in the case the IRO had not asked to have sight of the sibling assessment.


Some common errors

As many practitioners will already know, inadequate sibling assessments can create huge difficulties for the court, and can cause delay in cases.

An example of some common flaws can be seen in the case of Re A, B, C, D and E (Children: Care Plans) [2017] 6.  This was a case concerning a sibling group of five children. Other than the first few days, the older four children were placed in foster care together. Child E was placed after birth in a separate foster care placement. The local authority proposed adoption for the younger four siblings and long-term foster care for A.

The social worker had provided a 'sibling assessment' not a 'together and apart' assessment. It did not assess the consequences of separation for each child. The deficits in the assessment were as follows:

a. The focus was on the younger four siblings. A, the older child, with a care plan of long-term foster care, was absent.

b. The purpose of the assessment was to consider the configuration of adoptive placements for the four younger children. Again, the focus was on the children to be adopted.

c. There was a lack of analysis of the impact of separation for each of the children individually.

There were also gaps in the final social work statement, which included there being no consideration of the positives of long-term foster carer, just the risks. There was an absence of the impact on the emotional welfare of the children and no mention of Child A.

On Day 2 of the hearing the SW attempted to make good the gaps and set out the work she had done with Child A.  She addressed the impact of implementation of the care plans on Child A, but not on the other children.  The result was an adjournment and instruction of an experienced child psychologist. 


Not limited to when the court is determining an application for a care order

Siblings assessments should not just be confined to the stage of proceedings where the court is determining an application for care orders or placement orders. The case of Re T Application to Revoke Placement Orders: Change in Circumstances) [2014] EWCA Civ 1369 provides an example of a lack of assessment of sibling separation at the point of application to revoke placement orders.

Care proceedings were initiated in relation to four children due to domestic abuse between the parents.  By the time of the final hearing the father had commenced divorce proceedings and had started a new relationship. The social worker reported that the siblings had a strong and inter-dependent relationship with each other. At a final hearing the youngest two were made the subject of placement orders. The father was refused permission to oppose the placement orders and appealed. The two older children were represented but the younger two were not.

The appeal was allowed. There were two elements to the change of circumstances: the father's new relationship and the unsettled behaviour of the youngest children who were subject to placement orders. There had been a deterioration in their behaviour and distress, and upset and strength of feeling that the two older boys had about their contact with their younger brothers being terminated. There was no assessment of the younger two children's unsettled behaviour.

As Ms. Justice Russell said at paragraph 52: "There was no current assessment of the underlying cause of the children's unsettled or distressed behaviour by any of the professionals involved in their care or the case put before the court either by the local authority or those representing the children themselves".

And in a criticism of the work that had been undertaken by the guardian, which had been very limited, Ms. Justice Russell said this at paragraph 53: "The children were not visited by their guardian at the time and the guardian was, therefore, unable to comment on the children's behaviour and filed one page of brief notes based on the guardian's conversation with the foster carer…."


The responsibility of the court and guardian

In the case of G [2019] 7 HHJ Matthews QC determined a case concerning two sisters, once described by professionals as having a strong attachment with each other despite a significant gap in age, who had a care plan of being placed together.  Within the year following the final hearing, the local authority attempted to place the children for adoption and when that failed, 'brutally' separated the children with no preparation and then terminated their sibling relationship. They had only one further meeting after their separation, which was a goodbye visit.  The local authority failed to notify the family of these events until months afterwards.

In these proceedings a sibling assessment was completed some 6 months prior to the final hearing.  It had concluded the sisters shared a very close reciprocal bond. It was not updated in advance of the final hearing. 

The local authority issued an application to revoke the placement order for S, some six months after the decision was made to change the care plan for the girls.  The mother issued an application to discharge the care order in respect of S, and also issued an application to discharge the placement order in respect of R; however, the local authority had already placed R in a prospective adoptive placement, thus removing the mother's ability to make such an application.

It was suggested to the court that the local authority should not have advanced the original care plan or a joint adoptive placement.  The local authority accepted they had failed to identify the extent of S's challenging behaviours and the difficulties of parenting S with her sister when formulating their final care plan, considering what the foster carers at the time were recording. The local authority accepted they did not identify the extent of these difficulties to the court; although the court was made aware that S was demonstrating challenging behaviour, the social worker was of the view it was attributable to the change of routine and her anxiety leading up to the final hearing. The local authority failed to inform the court that at a meeting the foster carers and their supervising social worker were of the view the children would benefit from being separated, and at a further meeting with the school, health visitor and foster carers, there were concerns raised about the plan of the girls being kept together in light of S's behaviour and need for one-to-one support. 

HHJ Matthews QC did agree that the care plan was optimistic but stated that the court has seen similarly optimistic care plans advanced before, and it is often dependent upon whether there are the right potential adopters available at the time. HHJ Matthews QC pointed out that the care plans were approved by the court.  It would have been open to the court not to sanction care plans of joint placement for adoption. It was therefore simplistic to apportion all of the responsibility to the local authority, when the Guardian at the time and the court must also take responsibility. 


The instruction of an expert and ability of the court to scrutinise implementation of care plans

A further issue in the case of Re G was that of the instruction by the local authority of an expert, AB, whose impact was very negative.  AB was neither a child psychologist, nor psychiatrist, and was not specialised in attachment. The local authority's decision to separate the sibling was based upon the recommendation of AB.

In an echo of the failings in the case of BT and GT, the recommendation of AB to physically separate the siblings was unwritten at the time of the decision.  In Re G, the oral advice from AB appeared to differ from that set out in the written report.  The local authority accepted they had failed to question the recommendations of AB, and that they had instructed an expert whose primary expertise was not in working with children.  The court struggled to understand why AB had been chosen in such a complex case, the rationale having been that ABE had been the only psychologist who responded to the offer of work.  There were also issues with the local authority's letter of instruction, which was not balanced and which the court considered was slanted towards a separation of the children.

A point made more than once in the judgment was that the local authority could have issued an application to revoke the placement order and the court could have given urgent directions.  This would have enabled the matter to be before the court, with the supervision of the court, appointment of a guardian and separation representation of the children.  The local authority knew that the court had approved care plans that placed the siblings together. The family themselves could have made applications before the court if they had been informed of what had happened, and as they had not, this had not taken place.

There are limits to the court's powers to scrutinise the implementation of a care plan after a final hearing.  However, if a key aspect of the care plan, such as placement together for adoption, is to be changed, it is difficult to see why the local authority does not apply sooner for revocation of the placement order.  The judgment urges local authorities to be transparent and open to scrutiny, stating that parents and family members must be kept informed of developments rather than ignored.  It considered that, 'if the approved care plan becomes unworkable, the Local Authority should make an appropriate application to the court, notify CAFCASS and/or encourage family members to make such an application if the Local Authority is not in a position to do so'  8.

The judgment includes a number of criticisms of AB, who had exceeded his remit. Some of the criticisms are as follows:

a.    He made recommendations prior to the production of his report

b.    He had discussions with the foster carers, resulting in them foreshortening the term of their notice.  He made comments that gave a clear and strong indication that the fosterer carers needed to cause S to be removed, he also told them she posed a physical risk to R and their own child

c.   His behaviour caused the local authority to make the emergency change of placement resulting in sibling separation

d. He did not perform a comprehensive assessment of the risk posed by S, nor did he enquire whether the local authority had performed such an assessment. In fact the local authority had the month before and concluded the risk was manageable

e. His descriptions of S were negative without a proper analytical basis

f. He encouraged the local authority to take premature action in separating the siblings without considering the brief amount of time he had been involved and the court's plan for the children

g. He did not identify the likely effect on S of her separation from R, and failed to consider the potential impact on R of separation from S

h. He informed S about her future in a meeting with her without proper consultation and recommended the termination of sibling contact.


Conclusion

Whilst there are no official statistics on sibling groups in care, a number of studies have considered sibling separation, for example the report for the Family Rights Group by Cathy Ashley and David Roth 9. Their findings were that:

i. Half (49.5%) of sibling groups in local authority care are split up.

ii. 37% of children in care who have at least one other sibling in care are living with none of their siblings.

Bearing in mind these statistics, it is essential that decisions relating to siblings are evidenced-based. The complex issue of sibling placements and whether siblings should be placed together or not will remain a feature of care proceedings. It is vital that proper assessments are done, and that practitioners are able to challenge those that do not properly analyse the long-term consequences of whether siblings are placed together or apart. 


1 Page 32, Monk, D. and Macvarish, J. (2018) Siblings, Contact and the Law: An Overlooked Relationship, London: Birkbeck: https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/Siblings20Full20Report202018.pdf
2 Ibid, page 34
3 Ibid, page 34
4 Published in 2001 and 2008 by the British Association for Adoption and Fostering
5 Published by CoramBAAF, 2018
6 Judgment 24 August 2017 – HHJ Bellamy
7 MB155/18, judgment 13 June 2019, https://www.bailii.org/ew/cases/EWFC/OJ/2019/B70.html
8 At paragraph 175
9 https://www.frg.org.uk/images/PDFS/siblings-in-care-final-report-january-2015.pdf