An elephant in the room – what could an extra 26 weeks do?

The Court of Appeal has given judgment in a case where the judge at first instance delayed for 6 months between the end of the hearing and giving a decision: http://www.bailii.org/ew/cases/EWCA/Civ/2015/606.html.

As ever, hat tip to @suesspiciousmin for reading the case so that we don’t have to! His commentary is here: http://suesspiciousminds.com/2015/06/18/six-month-delay-in-giving-judgment-appeal-point/

I just wanted to say, there is an elephant in the room. These parents continued to look after four of their children after the hearing and before the judgment 6 months later. The first instance judgment was that they should lose those children. For some of the children who had remained at home for six further months while awaiting judgment, the judgment was for non-consensual adoption:

253. Adoption for the 4 youngest children is now clearly the best option and I find it to be necessary in their interests because it is the only option likely to meet their long-term needs for security, safety and stability.

254. I am satisfied that the consent of the mother and of the father to the making of placement orders should be dispensed with pursuant to section 52 (1) of the Adoption and Children Act 2002 on the ground that the welfare of each child requires it. (paragraph numbers refer to the first instance judgment)

The judgment on appeal said there must be a fresh hearing to determine whether their success at parenting during the six-month delay changed anything:

the question of whether or not the parents could provide good enough care was at the centre of his deliberations. Their ability to demonstrate commitment to prioritising the needs of the children and their ability to sustain the delivery of good enough care was at the core of the case. The judge is clear at paragraph 248(4) that ‘particularly careful thought [is] to be given to whether it is now really necessary’ to remove the children. He had addendum submissions which asserted that the parents had indeed made significant and sustained progress in the intervening period. On the facts of the present case it was therefore, in my view, necessary for the judge to obtain short updating evidence from the local authority, the parents and the Children’s Guardian as to the welfare of the four children who had continued to be at home in the care of their parents under interim supervision orders during the 6 months prior to delivery of his judgment.

I argued here that:

an important plank in the government’s strategy to implement its programme to promote adoption has been to firm up the no-delay principle. There have not been the same legal objections to the no delay principle; and there have not been vociferous campaigns for delay as there are campaigns against non-consensual adoption. Thus, the government hopes to promote non-consensual adoption by tightening up the no delay principle. No delay has come to mean 26 weeks, first in speeches, then in guidance, and now in law – Children and Families Act 2014 section 14. If the time available for parents to address their difficulties, for alternative family carers to be found, or even for experts to be found, is capped at 26 weeks, then the range of circumstances in which non-consensual adoption takes place will thereby be increased.

These care proceedings commenced in February 2014 and, under pressure from the 26-week timetable, concluded some seven months later. Uniquely, we have an insight into what the position might have been not after seven months, but after 13 months. On behalf of the children, it was said,

it was clear “that the parents have made significant changes for the better and that the changes are being sustained.” It was asserted that the children were “clearly thriving” at home

The Court of Appeal is at least agreeing that there is a possibility that four children placed for adoption without consent might not have needed that outcome had everyone not been under the pressure of the 26 week timetable.

The elephant in the room is: how many more?

Allan Norman (@CelticKnotTweet) is an independent social worker at Celtic Knot. Between 2006-13 Celtic Knot was also his law firm.

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