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Tuesday, 09 May 2017

Judge rules social workers thwarted mother's challenge to revoke adoption placement

Written by John Aston

A senior judge has ruled a "thwarted" mother was treated unfairly and unlawfully when she was not given a proper chance to challenge a local authority's plans to place her child with prospective adopters.

The judge ruled Essex County Council social workers "deliberately for welfare reasons sought to prevent (the mother) from making an application to revoke the placement order".

Mr Justice Charles, sitting at the High Court in London, called for official guidance in such cases to be reviewed and condemned "races" to put children with adopters before legal challenges could be brought by parents.

His ruling opens the way for the mother, who cannot be named, to claim compensation at a future date for breaches to her human rights.

The local authority placed child "EL" for adoption in October 2016 before the mother could issue an application for leave to challenge the decision.

Quashing the decision, the judge ruled the local authority had acted contrary to statutory guidance on adoption "to thwart an application to revoke the placement order".

Fairness and justice had required the local authority to give the mother a deadline date and a reasonable amount of time to apply to revoke the placement order, the judge said.

He added: "I suggest that not only is a race between an under-informed parent and the adoption agency likely to be unfair it is also likely to create significant risks to the achievement of a result that best promotes the welfare of the child and the timely completion of a plan for adoption."

Lawyers for the county council argued the welfare of the child justified the adoption decision.

They argued the mother had taken a full part in the care proceedings, and fairness did not require the authority to give her information on how she could challenge the planned placement before it took place, or to give the date of the placement.

But the mother successfully argued the adoption procedures were unlawful and breached her rights to a fair trial under Article 6 of the European Convention on Human Rights.

The judge declared EL "has not lawfully been placed for adoption".

He gave directions for the Family Court to now consider the mother's original application to challenge the adoption under the Adoption and Children Act 2002, or to allow her to make a fresh application.

The judge said in his written ruling handed down on Monday that he would like "to express my sympathies for the prospective adopters having to suffer the uncertainties caused by the local authority to act lawfully".

The mother has a boy aged 12 and a girl aged six. Family Court orders endorsed care plans made by the local authority.

The order in respect of the boy involves long-term foster care, but approval was given for his sister, EL, to be adopted.

The mother's bid to appeal against the Family Court order in respect of EL was dismissed in August 2016, and the actual placement went ahead the following October.

The judge called on those responsible for issuing guidance in adoption cases, and the Family Court and its Rules Committee, to reconsider what information should be given to interested parties on all the stages of the adoption process, and the ways it can be challenged.

The judge said in EL's case he was prepared to assume that the welfare arguments advanced by the local authority were strong and the mother's prospects of revoking the placement order were "poor".

The judge said the final contact between mother and daughter was "fraught".

The local authority reported the mother's behaviour was "unsettling and frightening" for the child, and she did not accept the harm done to her children by her parenting.

But views expressed by the social workers involved were "not convincing" on the limited background information before the court and he would have liked more information.

The judge said he was concerned they did not address issues of sibling contact and focused on short-term problems.

They did not explain "why the risks taken by pressing ahead with placement when it was known that the mother was taking steps to revoke the placement order promoted the welfare of the child".

The course taken by the local authority had "substantial overlaps" with that taken by an adoption agency in the case of "Re F", described by the Court of Appeal as "disgraceful", said the judge.

However the Essex social workers had acted on legal advice "and so can assert that their decision was not disgraceful".

But that did not mean it was fair.

The judge said Re F "is not authority for the proposition, as the social workers were advised by the legal department, that before an application for leave to make an application to revoke a placement has been made the local authority can simply get on with its plan for adoption".

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