K (A Child: Post Adoption Placement Breakdown), Re  EWHC B9 (Fam) (27 July 2012)
If this were a whodunnit, I guessed the plot by chapter 15. Paragraph 15 actually since it is a judgement, but that’s still pretty early on given that the judgement runs to over 200 paragraphs. I still read it to the end, it was a real can’t-put-down page turner with a breadth of plot and elements of tragedy that gripped. And it had some unexpected twists to the plot to keep you reading, like a good whodunnit. And it kept you guessing until the very last paragraphs what the solution was, again like a good whodunnit.
Of course, the title was badly chosen: “A Child: Post Adoption Placement Breakdown” gives away too much of the plot. But what was it about paragraph 15? It reads:
MG and FG are committed Christians. They are Roman Catholics (the significance of which will become apparent later in this judgment). Their decision to adopt was borne out of a desire to help a child less fortunate than their own children. They approached Coventry City Council in February 2000. In their Form F it is recorded that they ‘do not feel able to take a child who has been sexually abused or who displays sexualised behaviour because of the effect this might have on Chloe and Rachel.’ It was recommended ‘that they are approved as adopters for one child of either sex aged between 4 and 6 years with no major health or emotional problems.’
So, I imagined, Katie is going to be adopted in ignorance of a past which certainly includes sexualised behaviour on the part of siblings (I had read that much in paragraph 2); such behaviour is going to emerge with Katie also; the adoptive parents are going to be unable to manage; there are going to be allegations made against them; there will be issues relating to either contraception or abortion because they are Roman Catholics; it will all end in acrimony; and the local authority will get a care order.
How far was I right, and if I was, how did I guess? The answer to the first question is that I was only partly right. Yes, there were questions raised about whether the adopters had full information [paragraph 28]. Yes, the adoptive parents were unable to manage – that forms the bulk of the judgement. Yes, there were allegations made [paragraph 55]. Yes, there was an issue relating to contraception [paragraph 82]. Yes, a care order was made [paragraph 206].
My imagination overplayed some features, drawing too heavily on apparent clues in the early paragraphs. But my imagination did not fail me. I want to pause for a moment and reflect on that. I could imagine how difficult it would be to take on a late adoption of someone with such a traumatic background. I could imagine what it must be like for Katie, after practically feral early years, to be expected to slot in as the younger sibling in a middle class family. I could imagine the clash between intrinsic and extrinsic motivators on behaviour, the parents struggling with wanting to inculcate the former, feeling they had to use the latter. I could imagine the inevitable rows, the deteriorating relationship…
And it is imagination. I can’t draw on personal experience of adoption, nor relevant professional experience. But if I, by imagining myself into other peoples’ situations, could understand what it must have been like, then my guess is that many other parents could imagine it too.
The shocking twist in the plot, therefore, for me, was to read the perspective of most of the professional involved. Almost without exception, they blamed the parents for the breakdown. And I was so disappointed in my professional colleagues for their lack of imagination. While bringing up their own children with comparative success, was it likely that the adoptive parents wanted an adoptive placement to go so badly? Isn’t it inevitably going to be frustrating if over many years you offer love and encouragement, only to have it thrown back at you? Surely it is not a leap of the imagination too far to imagine the despair that arises when there is no escape route because you have committed indefinitely, and repeated requests for respite and support are turned down; to appreciate the different pressures between adoptive parents committed 24/7 and professionals whose professional role regulates and protects from the consequences of contact? Did none of these professionals ask themselves the question, “Could I really do better with a child this damaged, and so little support?” Did they console themselves that while they couldn’t do better, their professional expertise still gave them the right to sit in judgement – “we’re not talking about me, we’re talking about you”?
I think the judge’s understated criticism of the way in which counsel for the local authority summed up was the highlight of this judgement:
If there was any remaining doubt about the local authority’s attitude towards these parents that doubt was removed by Miss McGrath in her closing submissions… She said ‘I don’t know how any local authority could be expected to work with parents who show those attitudes’… Having urged me to avoid rhetoric and proceed only on fact, she asked me, rhetorically, why it is that stones have been thrown at a local authority that has put Katie’s interests at the forefront of its mind. Why is it, she asked, again rhetorically, that the parents are not able to agree that Katie is beyond parental control? The answer, she submits, is that these parents are entirely adult focussed. How any reasonable person could fail to accept that Katie is beyond parental control is, she said, ‘something the local authority struggles to grasp’. Where, she asked, again rhetorically, is the love that goes with the understanding of attachment disorder? [paragraph 170]
Now, the other significant prediction that I got right by paragraph 15 was that a care order would be made. This did not rely on imagination, here I could draw upon legal professional expertise. There are any number of cases which demonstrate the legal principle that care proceedings are not a forum to punish local authorities for their child protection failings. Remember, for example:
- Bath & North East Somerset Council v A Mother & Ors  EWHC B10 (Fam) (22 December 2008), where the team manager, with a conviction for conspiracy to murder some years previously, tried to instruct the junior social worker (for whom we later acted) to lie to the court in evidence – the local authority still obtained special guardianship and care orders for the children; or
- G, R (on the application of) v Nottingham City Council  EWHC 400 (Admin) (05 March 2008), where the baby was unlawfully removed without the authority of a care order at all, and the court ordered his return – the local authority still obtained a care order two days later.
I knew, therefore, that the welfare principle would guide the court to act in the best interests of the child, irrespective of the force of the arguments put forward by the adults involved, and of the blame being thrown around.
But while I expected a care order, I did not expect it to be such a close thing. It was such a close call, in fact, that at two points I changed my mind and thought a care order would not be made. They were:
- At paragraph 203, by which point, the judge has recorded how the expert – the one with imagination – does not think a care order will be best for either adoptive parents or child, has sympathised with the father’s plaintive question, “if this is the way the local authority treat us when we alone have parental responsibility, how will they treat us if they share parental responsibility with us under a care order?” and has concluded that s/he is “not satisfied that in this case the local authority has convincingly demonstrated how Katie’s situation will improve if I make a care order”; and
- At paragraph 205, where s/he argues “that in this case wardship has more to offer than a care order”.
Indeed, while I expected a care order, I don’t find very convincing the basis upon which it was made. The main argument both against a care order and against no order is the consequences arising from the poor relationship between the adoptive parents and the local authority. But while the judge is unconvinced a care order will improve matters for Katie, s/he thinks no order would be unhelpful. So the best that can be said for the care order that was made is that it will do less harm than no order at all. My concern about this derives from the doctrine of necessity. The doctrine of necessity applies here because Article 8 requires that the making of the order is necessary. And one part of the doctrine of necessity says that the person relying on it should not have themselves created the situation that made the act necessary. This local authority seems to have come perilously close to that.
And all for want of a little imagination. Or maybe because of a need to blame.
When I tweeted this case this morning, I said that the “High Court shows that being out of parental control need not involve blame”. My final observation is about blame. The judge here not only reasoned that blame was not necessary, but drew on statutory guidance to that effect [paragraph 202]. Contentious they may be in both a legal and everyday sense, but surely care proceedings frequently need not involve blame? I have shown that the welfare of the child is more important than the mud slung by the parties; but more generally, this is a protective jurisdiction, and as social workers we have a duty to protect from significant harm whether or not anyone is to blame for that harm.
Whodunnit? No-one dunnit. I guessed that right.
Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.