A review of where care proceedings have got to.
26 weeks –v- Re B-S –v- Children and Families Bill. The power struggle over adoption.
Practising lawyers have a strange relationship with real politics. The courts and those who work in them pretend that we accept the laws made by Parliament and are simply interpreting or enforcing them. Clearly something quite different is happening around the subject of adoption.
First comes the 26 weeks rule – partly driven by a genuine dissatisfaction with delays and partly as a result of government threats to remove care proceedings from the court system altogether. However the government’s attitude is explicitly and powerfully driven by an ideological commitment to increase adoption. This drift towards social engineering has alarmed a number of commentators and one assumes has alarmed the senior judiciary.
So this was countered by the cases commencing with Re B and going through most famously to Re B-S with the hugely important explicit message that adoption is the last resort and that all other option should be carefully considered at the same time as the assessment of the parents’ capacity. In some senses the emphasis on “frontloading” of cases in which far greater preparation is required from Local Authorities squares the circle or solves the apparent paradox between the first two elements. Pre-proceedings have to be not just PLO compliant but Re B-S compliant.
So what is the 26 week court process then about? Emergencies and other disputed thresholds?
Sexual and physical abuse / NAI – Late discovered acute and serious physical neglect. If evidence warrants it, immediate removal is required. If disputed then forensic investigation is court business. But in non emergencies – emotional abuse and chronic neglect are on spectrum and are opinion matters about parental inability to provide good enough care.
Distinguish two very distinct aspects of “Re B-S compliance” – compliant assessment of parents ie to establish threshold or compliant future care planning ie what happens if the court find threshold established. Have all alternatives to adoption been fully assessed?
B-S compliant assessment: Is this a stitch up? Parents and children are not represented in pre-proceedings. The current pre-proceedings letter triggers some basic legal aid for advice, some minimal involvement in the pre-proceedings process. But not for the child and there is no Guardian input. And so far there is no protocol for minimum standards – eg how the assessment is chosen or set up. No time for parents to be advised by those they trust to engage. No time for parents to change even in terms of hearing the concerns. If they are failing at the outset – then that’s it.
Decision by experts. ‘Social workers are experts?’ Really? Some are 18 months qualified, overloaded, trained in another jurisdiction. And the issue of what could be done to assist the parents? A social worker who is set on removal – is this the right person to elicit co-operation and good motivation?
The factual basis of these sorts of thresholds is rarely in dispute. The court becomes a retrospective assessor of the social work practice – the allegedly Re B-S compliant assessment.
Problems: The lack of time allowed to Guardians to investigate parents and social work practice and be able to advise the court. The loss of many of the most experienced Guardians. The limitation on ISWs. The ‘necessary’ rule and the LAA. The 26 weeks. So – no full solution.
But all this ignores the government trump card: Clause 1 of Children and Families Bill tells local authorities not to prioritise placing a looked after child with a suitable wider family member over a prospective adopter. Once adoption is even considered local authorities must consider placing a child with prospective adopters (who are temporarily approved as foster carers) Including placing the child out of their local area. This includes s20 children for whom no judicial decision have been made. We can anticipate the dynamic privatisation of all of this. Re B-S would be negated.
If the President in unable to protest – Should we not hear it from this conference?