FAMILY & COURT OF Winter 2019 PROTECTION NEWSLETTER
From the Deans Court Chambers Family & Court of Protection Teams
Civil Insurance Fraud Autumn Newsletter 2017 MANCHESTER PRESTON
24 St John Street 101 Walker Street Manchester Preston M3 4DF PR1 2RR 0161 214 000 01772 565600 Meet the team:
Susan Grocott QC Jane Cross QC Julia Cheetham QC Karen Brody Heather Hobson
Bansa Singh Hayer Peter Rothery Kate Akerman Carolyn Bland Archna Dawar
Elizabeth Dudley- Sasha Watkinson Joanna Moody Sophie Cartwright Elizabeth Morton Jones
Susan Deas Rosalind Emsley- Rebecca Gregg Anna Bentley Mark Bradley Smith
Arron Thomas Helen Wilkinson Michael Jones Emily Price Patrick Gilmore
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Prudence Beaumont Claire Athis Sonny Flood Adrian Francis Liam Kelly, Family Pupil
For more detailed information on all counsel, their full CVs and experience can be found on our website at deanscourt.co.uk
If there are any topics you are interested in, anything you would like to discuss, or if you have any comments or feedback please feel free to contact our Family & Court of Protection Clerks on 0161 214 6000 or via email:
Louise McCarty – [email protected] Matt Rigby – [email protected]
IN THIS EDITION…
3 Julia Cheetham QC Editorial
4-6 Claire Athis Matrimonial Finance Update: Family The Pension Advisory Group Comes to Manchester
7-12 Michael Jones Depriving Children of their Family Liberty: Re D, Parental Consent, and Section 25
13-14 Adrian Francis Court of Protection Case Law Court of Protection Update
15-18 Adrian Francis DOLS & Care Fees Update Court of Protection
19-28 Susan Grocott QC Re B: (A Child) (Post- (Foreword) Adoption Contact) [2019] Family EWCA Civ 29: Where Next Liam Kelly for Post Adoption Contact Family Pupil
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Editorial
By Julia Cheetham QC
Welcome to the winter edition of the Deans Court Divorce published by the Nuffield Foundation Family and Court of Protection Team Newsletter. following nearly two years of development and In this edition Adrian Francis provides an research by a multidisciplinary group and invaluable end of year round up of the latest COP endorsed by the President of the Family Division. cases including the use of the COP DOL11 procedure in the case of JDO (authorisation of Finally, family pupil Liam Kelly provides a
deprivation of liberty) [2019] EWCOP and an comprehensive review of the development of the update in relation to the Liberty Protection law and the research in relation to post adoption Safeguards at the moment due to come into force contact based on a talk given by Susan Grocott later next year. QC at this year’s ‘White Paper’ conference held in Manchester in November. Continuing the theme of deprivation of liberty Michael Jones analyses the judgment in the long We hope that you find this edition useful. Please awaited Supreme Court Case of Re D (A Child) contact us if there are any areas which you would [2019] UKSC 42. There is no doubt that there has like us to deal with in the Spring issue. It just
been a significant increase in the number of remains for me to thank you for your continuing applications for declarations authorising local support and to wish you all a very happy festive authorities to deprive children of their liberty. Re D break from everyone at Deans Court, we look (A Child) [2019] UKSC 42 sets out some forward to seeing you in the New Year. important ground rules for those applications but also leaves some fundamental issues undecided Julia Cheetham QC as they did not arise directly in the case, in particular whether a parent could consent to a deprivation of liberty for a child under the age of 16.
In Re D Lady Hale points out that the issues at stake were the fundamental relationship between the concept of parental responsibility a private law
concept, the common law and relevant statutory provisions and the protections offered to children under the European Convention on Human
Rights, particularly Articles 5 and 8. The Supreme Court decided by a majority (with strong dissenting judgments) that a parent could not consent to the deprivation of liberty of their 16 to 18 year old incapacitous child. The judgment is long but as Michael says in his article essential reading for anyone practising in this field.
Claire Athis provides a very valuable update as to the Guide to the Treatment of Pensions on
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Matrimonial Finance Update: The Pension Advisory Group Comes to Manchester By Claire Athis
INTRODUCTION would give an annual income of only £1,704, compared to the income generated by the On Thursday 5th December 2019 Mills & Reeve average male pension pot of £8,520. Nineteen hosted a Seminar in their Manchester offices years on from the introduction of Pension Sharing presented by key members of the Pension Orders, they are still only used in a small minority Advisory Group, that multi-disciplinary group of of divorce cases and the treatment of Pensions on professionals specialising in financial remedies Divorce is picked out by the research as a and pensions on divorce, formed in June 2017, contributing factor in continuing gender which has worked to produce a Good Practice inequality.2 Guide1, published in July 2019 and endorsed by
the President, Sir Andrew McFarlane, as “formal GETTING TO GRIPS WITH THE GUIDANCE guidance to be applied when any issue
regarding a pension falls to be determined in The Guide to the Treatment of Pensions on Financial Remedy proceedings”. This one Divorce is comprehensive (it runs to 161 pages!) document (which can be easily downloaded using and provides much detailed information on the footnote below) contains everything the specialised aspects of unusual cases (for money practitioner needs to know about pensions example, Appendix H pages 107-109 addresses in order to give best advice to their clients. Small Self-Administered Schemes, which is a However, it is quite a dense read and so this niche topic, but if you are dealing with one, the article aims to point you towards the highlights guidance is there). The Guide’s Contents List is and also give you something of a ‘road map’ to six pages in length and it is worth keeping those assist in getting the most out of the Guide six pages to hand as they provide a useful insight itself, in the shortest time possible. into the wide range of topics covered. However, there are certain ‘headlines’, which will apply in every case where clients have pension assets, As we know only too well, for many divorcing which I have summarised below and provided couples, especially after a long marriage, one of references to where you can find the supporting the most significant assets under consideration detail within the body of the Report. will be the parties’ pensions. Typically, a Husband entering court proceedings is concerned to WHAT PRACTITIONERS NEED TO KNOW ‘protect my pension’; and often a Wife will be prepared to concede a Pension Sharing Order for The key substantive change concerns the issue of a slightly greater share of the more immediately apportionment, that is, the wide spread (in the available capital. The Pension Advisory Group call North West anyway!) practice of only sharing this routine undervaluing of Husbands’ pension pension rights built up during the marriage and/or entitlements by way of offsetting “the last area of cohabitation. This document provides authoritative guidance that in all needs based unintended discrimination against wives on
divorce”. The Seminar highlighted that the ‘pensions gap’ between men and women at the 1 A Guide to the Treatment of Pensions on Divorce – end of their working lives is much more significant download the full document at https://www.nuffieldfoundation.org/sites/default/files/files/Gui that the income gap during employment (and the de_To_The_Treatment_of_Pensions_on_Divorce- pensions gap has widened over the last decade). Digital(1).pdf 2 See https://www.cii.co.uk/media/10120355/moments-that- According to the Chartered Insurance Institute, in matter-pensions-life-journey-for-women.pdf 2018 the average female pension pot at 65 years 4 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Matrimonial Finance Update: The Pension Advisory Group Comes to Manchester Continued…
cases there should be no apportionment. All [References: Part 6 para 6.21, page 32 and pension rights (including state pension entitlement Part 7 pages 34-43] and to the date of the Hearing) should be included in the ‘marital pot’. This is very good news for the The key procedural change concerns the wives we represent (in general), but will come as standardisation of the treatment of pensions on a nasty shock to husbands (typically). divorce. Ignoring the pensions on the client’s [References: Part 4 pages 22-23 and Appendix S instructions is simply not an option. [Reference pages 140-141]. Although the theme throughout para 3.11 page 21] the document is that equality of income in retirement is the fairest outcome, please note the Best practice in every case is now defined as two potential arguments for unequal division set (with references): out at para 6.22 on page 33. i. Information gathering [para 2.5 page
14-15 and Appendix I pages 110-116]; The key practical change concerns offsetting, ii. Information gathered must include that is, the ubiquitous approach of trading future State Pension information and pension benefit for money now. Despite the consideration of impact on State difficulties inherent in comparing two very different Benefits [see Part 11 pages 56-60]; asset classes (‘apples and pears’) and the iii. Disclosure [paras 3.1-3.2 page 19]; complete lack of any legal basis, the Report iv. Validation checks [para 2.6 page 15]; confirms that offsetting is “by far the most v. Evaluation of whether client needs frequently used approach to accommodate financial advice [paras 2.14 and 2.15 pensions in the overall settlement”. pages 16-17];
vi. Consideration of the necessity for a The Pension Advisory Group Guidance: Pensions on Divorce Expert (aka i. warns against offsetting, pointing PODE). [para 2.8 page 16, para 3.3 out that outcomes can be potentially page 19, 3.6-3.13 pages 20-21 and irrational or unfair; paras 6.5-6.21 pages 26-32]; ii. provides practical advice on the steps vii. If required, the instruction of the PODE needed to ensure that offsetting, if [para 2.8-2.11 page 16]; done at all, is done properly; viii. Any PODE to be instructed is iii. advises that if clients insist on required to certify with a statement offsetting against your advice that they of truth that they have the required sign a disclaimer; skills [see Appendix C pages 86-87 iv. asserts that as a matter of good and the recommended Self- practice where offsetting is undertaken Certification set out in Appendix D the rationale for it should be recorded pages 88-90]; on the face of the order/set out on the ix. Standard Letter of Instruction to D81 (and that both pre-implementation PODE should be used [set out at and post-implementation figures are Appendix E pages 91 – 96]; included within D81). x. Advice to client should cover the most v. notes that negligence claims against common pitfalls [paras 2.12-2.13 page family lawyers in cases involving 16, para 2.25 page 18, Part 10 pages pensions “overwhelming relate to ill- 50-55 and paras F.14-F.16 page 100]; considered offsetting agreements”.
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Matrimonial Finance Update: The Pension Advisory Group Comes to Manchester Continued…
xi. Advice to client must NOT stray into financial matters [see paras 2.14-2.15 pages 16-17 again] xii. All the i’s must be dotted and t’s crossed! [paras 2.16-2.20 page 17] xiii. Implementation/Enforcement must be fully borne in mind [paras 2.22-2.24 pages 17-18 and Appendix F pages 97-105].
For those who have not yet lost the will to live, Appendices U and V make very interesting reading, showing that the Pension Advisory Group’s work in this issue has been so ground- breaking and thorough that they have been able to suggest the potential basis for a portfolio of six actuarial tables which would provide money practitioners with easy-to-compare pension valuations for all Defined Benefit pensions (Appendix U pages 143-147) and also to provide a ‘To-Do List’ for all responsible bodies in the sector (Appendix V pages 148-156) in order to improve practice on a wider scale.
Dealing with pensions is a complex and complicated aspect of financial remedy proceedings, with which all practitioners have struggled at times. Within this 161 page Guide is sound, sensible and accessible guidance which (in the end!) should make all our lives easier.
Claire Athis
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Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 By Michael Jones
Deprivation of liberty is a subject that has 3) The confinement must be received a great deal of attention over recent “imputable to the State” i.e. is there
years, with the issue having been considered by direct involvement of public authorities both the Court of Appeal, and now the Supreme in the individual’s detention? Court, in the context of children. The importance (Inevitably, in almost all cases that of being familiar with the legal provisions in come before the Court, a local relation to deprivation of liberty issues cannot be authority or possibly a health authority, understated, particularly given the increasing use will be directly involved). of restrictive care arrangements for children who are residing in placements which are not The first limb of the test, the objective criteria, registered as secure accommodation with the merits careful consideration; in some cases it may secretary of state. Aside from providing an be obvious that this is established, in others less update, I am going to go back to the very basic so. The objective element does not just apply to principles in relation to deprivation of liberty, and persons who have their liberty restricted by being then go on to consider the issue of secure kept at a specific location or are ‘locked in’ at a accommodation, which has only very recently placement; constant supervision can easily been addressed in some detail by the Court of constitute the first limb of the test. The question Appeal. practitioners need to ask themselves is whether the level of any restrictions present and level of The starting point is setting out exactly what supervision is reasonable for a child of that age. constitutes a deprivation of liberty; the three fold Every case dealt with on its own factual basis, test approved by the Supreme Court in Cheshire although the judgment of Cobb J in RD West and Chester CC v P (2014) UKSC 19 (taken (Deprivation of Liberty) (2018) EWFC 47 is very from Storck v Germany) is; useful when considering the definition of constant supervision and control; 1) The objective element of a person’s "…'complete' or 'constant' defines confinement to a certain limited 'supervision' and 'control' as indicating place for a not negligible length of something like 'total', 'unremitting', time. Consider the individual’s 'thorough', and/or 'unqualified'." particular circumstances – are they kept in a locked ward or room? Are Whilst each factual situation must be considered they subject to restraint? Are they separately, Sir James Munby made the following under the continuous supervision and helpful observations in Re A-F (Children) (No.2) control of care staff? (2018) EWHC 138 (Fam); 2) The additional subjective element that they have not validly consented “Inevitably, one has to proceed on a case- to the confinement in question Has by-case basis, having regard to the actual the individual indicated that they do not circumstances of the child and comparing wish to remain where they are being them with the notional circumstances of confined or expressed a wish to live the typical child of (to use Lord Kerr's elsewhere? phraseology) the same "age", "station",
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Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 Continued…
"familial background" and "relative Supreme Court has now considered the issue of maturity" who is "free from disability". the deprivation of liberty of children aged 16 and Recognising that this does scant justice to over in Re D (A Child)[2019] UKSC 42. The the very thoughtful submissions I have original judgment in D’s case was handed down had, in particular from Ms Heaton and Ms by Keehan J and reported as Birmingham City Burnell, the best I can do, by way, I Council v D (2016) EWCOP 8; in summary, emphasise, of little more than 'rule of Keehan J held that providing valied consent for thumb', is to suggest that: restrictive care arrangements relating to a child aged 16 or over in circumstances that would i) A child aged 10, even if under otherwise constitute a deprivation of liberty was pretty constant supervision, is outside the zone of parental responsibility. The unlikely to be "confined" for the Supreme Court was therefore being asked to purpose of Storck component (a). consider whether a parent could provide valid ii) A child aged 11, if under constant consent for a child aged 16, in the exercise of supervision, may, in contrast be so their parental responsibility. The facts of the case "confined", though the court should were relatively straightforward; D was a child be astute to avoid coming too diagnosed with ADHD, Asperger’s syndrome, and readily to such a conclusion. Tourette’s syndrome. He also had a mild learning iii) Once a child who is under constant disability. His parents struggled to look after him supervision has reached the age of in the family home and eventually accepted that 12, the court will more readily they were unable to meet his needs. Following a come to that conclusion. period residing in in-patient care, D moved into a residential placement subject to s.20 (where That said, all must depend upon the restrictions were placed upon his liberty) and circumstances of the particular case and Birmingham City Council brought matter before upon the identification by the judge in the the High Court. Keehan J held that the parents’ particular case of the attributes of the consent to his confinement could not be relied relevant comparator as described by Lord upon after he had turned 16. The Court of Appeal Kerr.” heard the appeal from Keehan J’s judgment in 2017 (reported as D (A Child) (2017) EWCA Civ On this basis, as a ‘rule of thumb’, if a child is 1695). The Court of Appeal held that it could not under the age of 10, then any restrictive care distinguish between the exercise of parental arrangements are likely to be considered as responsibility in relation to children under the age ‘normal’ in the context of a child of that age; this of 16, to the exercise of parental responsibility in means that Article 5 is not engaged and the first relation to those over that age. The key issue was limb of the test is not established. found to be that of “Gillick competence”.
The second limb of the test is where complexities The Court of Appeal (with the main judgment often arise. The issue of consent is far from coming from the then President, Sir James straightforward, with valid consent meaning that Munby) held that a child can attain Gillick the second limb of the test is not established and competence either before or after turning 16 years no deprivation of liberty is taking place. The
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Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 Continued…
of age. It concluded that if a child lacks Gillick Hale B went on to conclude that it was not within competence, then parents in principle, can the scope of parental responsibility for D’s parents
lawfully consent to arrangements which would to consent to a placement which deprived him of otherwise constitute a deprivation of liberty; the his liberty. fact that a child may be aged 16 or 17 was to that extent, irrelevant. The Supreme Court has now ‘Although there is no doubt that they, and indeed everyone else involved, had D’s overturned the Court of Appeal judgment. The best interests at heart, we cannot ignore Supreme Court judgment is over 60 pages long the possibility, nay even the probability, and considers a number of relevant issues. In that this will not always be the case. That relation to the objective limb of the three stage ‘acid test’, Baroness Hale determined that the is why there are safeguards required by article 5. Without such safeguards, there is central question in considering whether Article 5 is no way of ensuring that those with engaged as being whether the restrictions on a child’s liberty fall within the realms of normal parental responsibility exercise it in the best interests of the child, as the parental control for a child of that age; if they do, then article 5 is not engaged, but if they go Secretaries of State acknowledge that they must.’ beyond the remit of normal parental control, then it will be (Subject to the issue of whether a parent In other words, allowing parents to be able to can provide valid consent for the purposes of the provide valid consent on behalf of the child could second limb on the acid test.)’ potentially open the door to parental responsibility Again, as set out above in the extracts from A-F being exercised in a manner that is not (No.2), the issue in relation to the objective limb of appropriate and not in a child’s best interests, the test is comparing the restrictions placed upon without any safeguards being in place to prevent a child to those that would be in place for another this (as no Court authorisation would be child of that age. In the case of D, he was quite neccessary). The current situation is accordingly clearly subject to a greater level of supervision that, when a child reaches 16, irrespective of and control than a typical 15/16 year old, so whether they are Gillick competent, a parent Article 5 was found to have been engaged. All cannot provide valid consent for what would three limbs of the test were found to have been otherwise constitute a deprivation of liberty; if a satisfied and D had been deprived of his liberty. In case involves restrictions being placed upon the relation to parental responsibility, Baroness Hale liberty of a child who has reached 16, parents concluded that the suggestion that a parent could cannot provide valid consent, the second limb of exercise their parental responsibility in order to the acid test is made out, and the matter needs to seek to authorise the state (i.e. the local authority) place before the High Court in order to seek lawful to detain a child, was a ‘startling proposition’, on authorisation. the basis that it would allow a parent licence to Unfortunately, the Supreme Court did not violate ‘the most fundamental human rights of a comment on the use of parental responsibility in child’. cases where a child is under 16. Although Hale B noted the conclusions she reached regarding 16 and 17 year olds would ‘logically’ apply to younger children who were having their liberty restricted
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Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 Continued…
to a greater level than is normal for a child of their (Detention: Medical Treatment) [1997] 2 FLR 180 age, that issue did not arise in D’s case, so she respectively, held that; preferred not to express a definitive view. In contrast, it is interesting to consider Lord ‘A straightforward construction of the Carnworth’s comments. He noted the observation words of s.25 therefore leads to the of Hale B with ‘concern’ and suggested that, at conclusion that “secure accommodation” least for the time being, the law remains as it was means nothing more or less than following Keehan J’s judgment; i.e. parental accommodation provided for the purpose consent can operate to legitimately permit the of restricting liberty…. confinement of a child under the age of 16. This The case law at first instance therefore essentially means that there remains a degree of supports the view that the meaning of uncertainty as to the situation in relation to “secure accommodation” is as defined in children under the age of 16; that said, in order to s.25(1). The focus is on the use of exercise caution, I would suggest that cases accommodation for restricting liberty. If the involving the potential deprivation of liberty of a accommodation was designed for the child under the age of 16 should almost certainly restriction of liberty, or the primary be put before a Court. purpose of the placement is to restrict
liberty, it amounts to “secure The Supreme Court did go on, within Lady Black’s accommodation” under the Act. If there is judgment, to make reference to the use of secure a different primary purpose – for example, accommodation. Lady Black was clear that she treatment – the accommodation will not had not reached a concluded view, but she did amount to “secure accommodation” even if note that she was satisfied s.25 was not intended there is a degree of restriction on liberty.’ by Parliament to be interpreted so widely that it would catch all children who were having their Re B is an important judgment and should be care needs met within accommodation where read in full by any practitioners dealing with there is restrictions being placed upon their secure accommodation applications, irrespective liberty; of which party they represent within s.25 proceedings. “there is much force in the argument that it is upon the accommodation itself that the The Court at first instance had refused an spotlight should be turned, when application under s.25 on the basis that the s.25 determining whether particular criteria were not established because B was being accommodation is secure accommodation, cared for within a placement where she was rather than upon the attributes of the care deprived of her liberty, subject to authorisation of of the child in question.” the Court under the inherent jurisdiction; the Judge reasoned that as the placement was not The definition of ‘secure accommodation’ has now registered secure accommodation, she was being been considered in Re B (Secure Accommodation safely accommodated in ‘other’ (non-secure) Order) [2019] EWCA Civ, where Baker J, citing accommodation, meaning that the s.25 criteria Cazet J and Wall J in A Metropolitan Borough were not established. The Court of Appeal held Council v DB [1997] 1 FLR 767 and (what I deem that the issue when considering whether a to be the extremely important case) of Re C
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Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 Continued…
placement is ‘secure accommodation’ is the approved by the Secretary of State for use purpose of the accommodation; if the primary as secure accommodation? If the local purpose is the restriction of a child’s liberty, then it authority is proposing to place the child in constitutes secure accommodation, irrespective of a children’s home in Scotland, is the whether it is registered as such. The placement B accommodation provided by a service was residing at was secure accommodation as it which has been approved by the Scottish was intended to restrict her liberty; that was its Ministers? primary purpose. The Judge had therefore been wrong to find the s.25 criteria were not (5) Does the proposed order safeguard established. The Court of Appeal sets out the and promote the child’s welfare? approach that all Courts must take in secure (6) Is the order proportionate, i.e. do the accommodation application, with this being as benefits of the proposed placement follows; outweigh the infringement of rights? ‘Having analysed the roles played by (In the rare circumstances of the child welfare and proportionality in the decision- being aged under 13, Regulation 4 of the making process under s.25, I conclude 1991 Regulations require that the that, in determining whether the “relevant placement must also be approved by the criteria” under s.25(3) and (4) are satisfied, Secretary of State.)’ a court must ask the following questions. The Court will therefore need, when faced with an (1) Is the child being “looked after” by a application under s.25, to consider both welfare local authority, or, alternatively, does he or and proportionality. It is therefore not the case (as she fall within one of the other categories has been previously suggested by one line of specified in regulation 7? authorities), that if the s.25 criteria are established (2) Is the accommodation where the local then the Court must make an order. authority proposes to place the child In reality, we as practitioners all know that the “secure accommodation”, i.e. is it inherent jurisdiction has been used (and designed for or have as its primary continues to be so) in cases where there are no purpose the restriction of liberty? registered secure beds available, with the Court of (3) Is the court satisfied (a) that (i) the Appeal having confirmed the same in Re T (A child has a history of absconding and is Child) [2018] EWCA Civ 2136. This judgment likely to abscond from any other comments upon the use of the inherent description of accommodation, and (ii) if jurisdiction to authorise placement of children in he/she absconds, he/she is likely to suffer the ‘equivalent of secure accommodation’ due to significant harm or (b) that if kept in any the chronic shortage of secure accommodation as other description of accommodation, a resource. Re T will now need to be read in the he/she is likely to injure himself or other context of Re B in terms of what exactly persons? constitutes secure accommodation. I still question whether using the inherent jurisdiction in cases 4) If the local authority is proposing to where the s.25 criteria are established but where place the child in a secure children’s home there are known to be no available secure beds, in England, has the accommodation been is permissible; surely if the s.25 criteria are, on an 11 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Depriving Children of their Liberty: Re D, Parental Consent, and Section 25 Continued…
objective reading, established, then an application under the statute must be made and the local authority will have to wait for a bed to become available? Does the use of the inherent jurisdiction in such circumstances not cut across the statutory scheme in light of section 100? I have little doubt that the issue of secure accommodation will be considered by the Supreme Court in the near future.
Michael Jones
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When its Not Appropriate For a Local Authority to Make a COP DOL 11 Application Under the Streamlined Procedure By Adrian Francis
In the recently decided case of JDO (authorisation application which had been made under the of deprivation of liberty) [2019] EWCOP, streamlined procedure as set out in Part 2 of judgement was handed down by Her Honour Practice Direction 11 was not the correct Judge Hilder in respect of whether a local procedure to be used in this case. authority had provided full and frank disclosure in respect of it’s COP DOL 11 application. This The Local Authority had applied under the application having been made under the Court of streamlined procedure for continuing deprivation Protection’s streamlined procedure to authorise of P’s liberty despite concerns being raised by P's P’s deprivation of liberty and infringement of his parents as early as the initial best interests Article 5 Convention Rights. In this case P was a meeting in 2018. The court held that the duty of 24 years old male and his mother and father were the applicant local authority is to make ‘a full and respondents. P had not lived with them since the fair disclosure of all the material facts'. If a person age of 11 but they continued to visit him and were sensibly within the categories of person who significantly involved in his life. ought to be consulted holds a view which is contrary to the applicant local authority’s view. P has a diagnoses of cerebral palsy, autism, The court held that the applicant local authority learning disability and epilepsy, and his behaviour must make that clear in it’s application, could be challenging. Since May 2017 P had irrespective of its own view of the merits of any been living and receiving care at a supported opposing view. A local authority cannot simply living placement. This being a one bedroom flat dismiss the objection to a placement on the of which he had exclusive occupation. His care grounds that there are no alternative options and arrangements included eight hours a day of one hence the only available option is in P’s best to one carer support plus eight additional hours a interests. month of two to one carer support. The latter enabled family contact to take place. P shared wake in night staff with the residents of other flats The Local Authority Barnet Council did not, in the in the block. Latterly, following incidents when view of the court, make it clear in the form police assistance was required, P also required COPDOL11 that the parents opposed the two to one carer support when accessing the application. The court held that the application community. There remain ongoing proceedings in should accordingly not have been brought under the Queen’s Bench Division in which P is the the streamlined procedure because there were claimant in a claim for clinical negligence. The contentious issues as early as the initial best Official Solicitor acts as P’s litigation friend in interests meeting when the parents expressed those proceedings. None of the parties disputed reservations about the placement. It was further that P was deprived of his liberty at his placement held that the case should have been brought by as per the Supreme Court’s judgement in way of a COP 1 application as a contested Cheshire West. However his parents raised welfare matter. The COP DOL 11 route not being concerns as early as the initial best interests the appropriate route for such applications. meeting in relation to his placement and then more latterly as to whether he was happy residing therein.
HHJ Hilder held that the local authority’s 13 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
A Local Authority was correct in not facilitating P’s contact with sex workers in the UK or in Holland Adrian Francis
In the recent case of Lincolnshire County Council and risks. It is therefore my opinion, that P lacks v AB [2019] EWCOP 43. Mr Justice Keehan capacity in this area and this is as a result of his sitting in the Court of Protection in his ex tempore learning disability and autism” judgement agreed with the local authority’s The local authority did not intend to facilitate P’s approach in not assisting or facilitating a person in access to sex workers either in the UK or Holland. receipt of services to have contact with sex The court agreed with the local authority and Mr workers either in here in the UK or Holland. Justice Keehan held that the local authority had Lincolnshire County Council brought this welfare adopted the right decision and approach in not application in relation to a 51 year old male who seeking to facilitate P's contact with sex workers has diagnoses of a moderate learning disability, either here or abroad. autistic spectrum disorder together with a history Mr Justice Keehan also said in his judgment that: of alcohol misuse and psychosis. P had a chaotic and difficult childhood attending various boarding “…I note that a care worker who causes or incites schools and was detained initially under the sexual activity by an individual for payment, with Mental Health Act 1983 in 1985. There then another person, commits a criminal offence, followed another 10 admissions up until 2003 pursuant to ss. 39,42 and 53A of the Sexual when he was detained under section 3 Mental Offences Act 2003.” Health Act 1983. The last admission under As such any care worker who looked after and section 3 being for a period of some 7 years. supported P and were to assist him in facilitating Upon his discharge from hospital P moved to a any visit to sex workers would be committing a community placement and met a local prostitute criminal offence. A declaration by the Court of whom he began a friendship with. P developed a Protection would not in such an instance prevent fascination with sex workers and would on any prosecution. His lordship Mr Justice Keehan occasion travel to Holland to visit such workers. also held that: The local authority made a welfare application for orders in respect of P’s capacity and best “In the Netherlands, of course, prostitution and interests in terms of his contact with sex workers. payment for sexual services are not illegal, But in my judgment, there is a very real risk that if a care Expert evidence was obtained from Dr Rippon worker here, supporting P, made arrangements who concluded that P lacked capacity in respect for him to travel to the Netherlands for the of contact specifically with sex workers although purposes of having sexual activity with a woman he retained capacity in terms of sexual relations. for payment, they would be at risk of being Dr Rippon said in evidence that: prosecuted for a breach of the Sexual Offences “P has limited insight into the risks that others Act 2003.” might pose to him, including sex workers and overestimated his ability to keep himself safe. He The court having held that it was wholly contrary could not think through the potential to P's best interests for him to have sexual consequences of visiting sex workers, including relations with prostitutes. Still less, was it the possibility of financial exploitation or appropriate for the court to sanction the same. As involvement with the criminal justice system. I such the Court has assisted in clarifying this believe that P failed to both understand the sensitive issue for local authorities when they are information necessary to make decisions about approached by persons in receipt of services with contact and was unable to weigh up the benefits such requests. 14 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Number of applications for DOLS authorisations & Liberty Protection Safeguards Update Adrian Francis
NHS Digital who provide statistics across the NHS Will there be a transitionary period? in England have reported that the number of As there are no transitionary regulations to Deprivation of Liberty Safeguards applications accompany the Mental Capacity Amendment Act received for the year 2018-2019 totalled 240,455 2019 this is an entirely unknown at this stage. It in England across all local authorities. Of the is a widely held view that there is likely to be a DOLS applications received 216,005 we period of perhaps a year where the DOLS runs completed. This is an increase of more than 42% alongside the LPS. This will allow for a transfer of on the 151,970 applications completed only 2 those subject to an extant DOLS authorisation to years ago. There however remained across transfer to LPS in an orderly way. England some 131,350 uncompleted DOLS applications which represents an ever increasing What are the problems with the LPS? total. As the number of completed applications The LPS represent a number of issues for local fails to meet the number of applications received authorities firstly their scope is much wider than in each year. A positive for DOLS supervisory the current DOLS, as the LPS statutory bodies is that whilst over half of all DOLS authorisation scheme will also encompass both applications remained uncompleted at the year supported living and care arrangements in a end following the Supreme Court’s Judgment in person’s home. The LPS also apply to 16 and 17 2014/15. This has now fallen to just over 10% of year olds as well as those persons over the age of all applications being uncompleted at year end in 18. 2018/2019. In terms of advantages to the new scheme whilst Local Authorities are no doubt improving in terms these are yet to be seen there are potentially of their management of the DOLS however with some firstly a proposed more streamlined process the Liberty Protection Safeguards already on the for authorising deprivations of liberty. In addition statute book via the Mental Capacity Amendment the responsibility for managing cases as the Act 2019, and due to come into force in October supervisory body will be divided between local 2020. There remain significant challenges ahead authorities and clinical commissioning groups. with it is reported in a recent survey 82% of adult With CCG’s becoming the supervisory body for social services directors having no or only partial persons in receipt of NHS continuing healthcare. confidence that they can deliver their statutory There will also be significant extra duties for care duties in relation to the Liberty Protection home managers to take responsibility for Safeguards from next year. assessments. How this will play out remains to The Liberty Protection Safeguards (“LPS”) be seen and whilst the rationale behind the new establishes a process for authorising statutory scheme which provides for greater arrangements enabling care or treatment which responsibility on care home managers to manage give rise to a deprivation of liberty within the assessments, is to reduce the burden on local meaning of Article 5(1) of the European authorities. The reality may well be that local Convention on Human Rights (ECHR). This authorities spend more time assisting care home being where the person lacks capacity to consent managers to understand and implement the new to the arrangements. It further provides for LPS. safeguards to persons subject to the regime. There is also the issue of the new approved
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Number of applications for DOLS authorisations & Liberty Protection Safeguards Update Adrian Francis
mental capacity professional role (AMCP), whose independently. As such she moved into an annex
primary role will be to review certain cases to of her daughter’s home. As Mrs B was unable ensure the statutory conditions to authorise any initially to sell her home her daughter paid all her deprivation of liberty are met. Best interest community care costs and day to day living assessors will be replaced by AMCP’s and local expenses. Mrs C also having funded the costs of authorities will need to ensure that teams of both physiotherapists and acupuncture therapists AMCP’s are established and provided with the for her mother. Mrs B had a sizeable package of requisite training. care comprising of 4 carer visits a day which the local authority commissioned. As Mrs B had Will there be a delay? twenty-four hour care needs it was arranged that The current administration passed the Mental her 4 daughters would meet these additional Capacity Amendment Act 2019 earlier this year. needs over and above the 4 care calls a day. The The LPS being due to come into force on October vast majority of the care fell to Mrs B’s daughter 2020. However whilst the legislation provides for Mrs C. As Mrs C ran a small business and as a Code of Practice to support the Act. There such did not have enough time to meet all of Mrs remains to date little sign or development of the B’s needs. She employed casual carers to necessary Code. Without development of the provide additional care to Mrs C in addition to Code of Practice which would need to be paying all of her mother’s day to day living costs. developed by the Department of Health and As Mrs B had capital in excess of the upper Social Care in conjunction with the Ministry of capital limit of £23,250 she also funded her own Justice. It would seem that the commencement of package of care. Mrs B could initially sell her the LPS will in all likelihood be delayed beyond former home to release captial as this was owned October 2020. It remains unclear until when but a with Mrs D. delay of 6 or perhaps 12 months seems likely in However in early 2015 Mrs B and Mrs D sold the terms of any implementation date. former home. Mrs B receiving her share of the proceeds of sale. Her solicitor visited her at Mrs Care Fees Update –A lifetime gift does not C’s home where another one of Mrs B’s
necessarily constitute a deprivation of daughters was present i.e. Mrs E. The solicitor assets witnessed Mrs B signing a letter stating that she wished to make a lifetime gift of £140,000 to Mrs
In a recent decision by the Local Government and C . The gift comprised of a sum of £2,000 per Social Care Ombudsman in West Sussex County week which was backdated to 2013 in recognition Council (18 007 203). The ombudsman found of the physical, emotional and financial support that West Sussex County Council was at fault in Mrs C had given to Mrs B. Following completion how it considered the issue of deprivation of of the sale of the property a sum of £140,000 was assets in relation to a life-time gift and should transferred into Mrs C’s account. Following a accordingly conduct a further review of it’s financial assessment of Mrs B in 2018. Mrs C decision. In this case the local authority found requested as Mrs B’s finances were close to the that Mrs B had deprived herself of £140,000 with upper capital limit that the council complete a the intention of avoiding care home fees by financial assessment. The councils having making a life-time gift for this amount to her Mrs B completed the said financial assessment decided suffered a stroke in 2013 and was unable to live that the lifetime gift of £140’000 was a deliberate
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Care Fees Update –A lifetime gift does not necessarily constitute a deprivation of assets Adrian Francis
deprivation of assets to avoid care fees. The clear in this case that Mrs B did have a council accordingly treated this lifetime gift as reasonable expectation of care needs, as she notional capital for the purposes of its financial needed 24-hour care for up to two years before assessment. This meant that the council treated the transfer of money. It was therefore for Mrs B’s Mrs C as if she still has the said capital. Mrs C representatives to provide evidence her intention instructed solicitors who appealed the decision was not to avoid paying for care. and provided bank statements showing payments and cash withdrawals by Mrs C for both care The Council also said that there was little costs for her mother Mrs B in addition to other evidence Mrs B had any intention to reimburse expenses. A tenancy agreement signed by Mrs B Mrs C for her care and daily living costs. It said to rent the annex was also produced although that there was no evidence she discussed this rent was never paid due to Mrs B’s lack of liquid with her solicitor. capital assets. It was submitted on behalf of Mrs The ombudsman stated that it was reasonable for C that the council should not therefore have the Council to question whether there was treated the gift as notional capital. The council enough evidence of Mrs B’s intention to reimburse subsequently agreed that the amounts spent on Mrs C. It was also reasonable for it to question formal care by Mrs C for Mrs B did not amount to how the individual expenditures match up to the a deprivation of assets. However these case lump-sum of £140,000 gifted to Mrs C. It not being costs totalled a maximum of £450 per week for the Ombudsman to question the Council’s leaving the remaining £1550 per week decision if it had properly considered all this unaccounted for in the council’s view. The information. The Ombudsman however found council maintained that there was insufficient that the Council had not set out its rationale evidence provided by Mrs C that the other clearly for finding that a deprivation of assets had expenses totalled up to the gift of £140,000. The taken place. council also queried the tenancy agreement and
other payments such as one for £10,000 in respect of maintenance on Mrs B’s former home. This being specifically in relation to the Council’s concerns that there was only evidence Mrs C spent £150 to £450 per week on care. Mrs C had The ombudsman was clear in its decision that the provided evidence in the form of bank statements, council was at fault in how it has considered the invoices from carers, a spreadsheet of expenses issue of any deprivation. Whilst a lump sum and a tenancy agreement in support of the money payment had been made by Mrs B to her spent by her on Mrs B to reimburse her for daughter Mrs C the ombudsman stated that it expenses. The total of the expenses listed was must not assume that this was to avoid Mrs B around £120,000. The Ombudsman found this to paying care fees. The ombudsman said that be closer to the £2,000 a week figure than the whilst the Council cannot look into the person’s Council identified from its financial assessment. mind at the time of any lifetime gifting. It must consider certain factors such as the timing of the The Ombudsman found that the Council had not gift and whether the person had a reasonable outlined in detail why it considered that these and expectation of care needs. other documents did not provide evidence Mrs B’s intent was to reimburse Mrs C, rather than avoid The ombudsman being of the view that it was paying care fees. 17 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Care Fees Update –A lifetime gift does not necessarily constitute a deprivation of assets Adrian Francis
The Ombudsman found that the Council could avoiding care and support charges has occurred: only look at the timing of the disposal and any evidence provided by Mrs C. It not being for the (a) whether avoiding the care and support charge Ombudsman to question the Council’s decision, if was a significant motivation in the timing of the it had properly considered the evidence. The disposal of the asset; at the point the capital was Ombudsman found that the Council had not disposed of could the person have a reasonable properly considered the evidence which Mrs C expectation of the need for care and support? had provided and was at fault in determining that (b) did the person have a reasonable expectation the lifetime gift constituted a deprivation of capital. of needing to contribute to the cost of their eligible care needs? Since the ombudsman’s decision was made West Sussex County Council have introduced a formal 12) For example, it would be unreasonable to deprivation of assets panel to consider the merits decide that a person had disposed of an asset in of each case on an individual basis. order to reduce the level of charges for their care When determining whether a lifetime gift or and support needs if at the time the disposal took indeed a transfer of any assets constitutes a place they were fit and healthy and could not deprivation of assets Councils should therefore have foreseen the need for care and support. firstly consider paragraphs 6 & 7 of Annex E of the Care and Support Statutory Guidance which The length of time between disposal and the says that: application of the financial assessment is a relevant factor for the Council to consider in 6) Deprivation of assets means where a person respect of any deprivation of capital. In the has intentionally deprived or decreased their Scottish case of Yule v South Lanarkshire Council overall assets in order to reduce the amount they (2001) 4 CCLR 383 it was held that a local are charged towards their care. This means that authority was entitled to take account of the value they must have known that they needed care and of an elderly woman’s home which was support and have reduced their assets in order to transferred to her daughter over 18 months before reduce the contribution they are asked to make she entered residential care. A good starting towards the cost of that care and support. point for any local authority seeking to determine whether a deprivation of assets has taken place is 7) Where this has been done to remove a debt to follow the guidance as set out from the Yule that would otherwise remain, even if that is not judgement as set out below which whilst not immediately due, this must not be considered as binding is persuasive and often cited: deprivation. A local authority requires evidence before it from Thereafter Councils should go onto consider which it can be reasonably inferred that the paragraphs 11 and 12 of Annex E which says deprivation of capital took place deliberately and that: with a purpose of the nature specified. The local authority cannot look into the mind of the person 11) There may be many reasons for a person making the disposition of capital or of others who depriving themselves of an asset. A local authority may be concerned in the transaction. It can only should therefore consider the following before look at the nature of the disposal within the deciding whether deprivation for the purpose of context of the time at which the circumstances in which that disposal took place. 18 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact By Liam Kelly, Pupil Barrister
Foreword of the case, “there is some possibility of ongoing, direct contact”2 but went no further. I was recently asked to speak to the question “How far can you push the court on contact, In November 2017, contact between B and her including post-proceedings and post-adoption parents was stopped and B’s placement with Mr contact between siblings and even between and Mrs X became an adoptive placement. A parents and children?” at a White Paper month later, Mr and Mrs X issued an application Conference in Manchester this Autumn. In this to formally adopt B, and although B’s parents did article Liam brings together the law and more not consent nor actively oppose the adoption, critically for practitioners the current research. they did express a wish for post adoption contact. When the Children Act 1989 first came into force Accordingly, B’s parents applied for leave of the there were a number of accompanying court3 to make an application for post-adoption implementation guides issued and one publication contact. Having considered the issues at a final in particular “Patterns and Outcomes in Child hearing, HHJ Watson refused the application and Placements” which was routinely referred. As we B’s parents duly appealed to against the refusal. know from other areas such as the investigation of allegations of child sex abuse, we appear to King LJ granted the parents application to appeal have lost a great deal of learning over the years. I against that decision on the grounds that ‘the am a firm believer of going back to basics and the implementation of s.51A, together with developing research is a critical tool for practitioners. recent research on the issue of post-adoption contact, justified consideration’4 by the court of Susan Grocott QC appeal.
Re B: (A Child) (Post-Adoption Contact) [2019] Post-Adoption Contact – Law and Social Work EWCA Civ 29 Practice
Following her birth, ‘B’ and her parents, both of Any analysis of post-adoption contact must start whom the court described as “disabled in respect with Lord Ackner’s words in Re C (A Minor) to their intellectual functioning”1, were moved to a (Adoption Order Conditions) [1989] AC 1 in which residential centre for assessment and the local he stated that “No doubt the court will not, except authority commenced care proceedings. in the most exceptional case, impose terms or Following 12 weeks’ assessment at the centre, a conditions as to access to members of the child’s final report was produced which concluded that natural family to which adopting parents do not the parents were unable to adequately care for B. agree.” This view was shared by J.C. Hall, who in B was placed with foster carers, Mr and Mrs X, his work ‘Problems of adoption and who had been approved for adoption and at the custodianship’, also in 1987, stated “continued conclusion of the care proceedings a care order access by a natural parent is repugnant to the and a placement order for adoption were made. purpose of adoption, which is to effect a complete legal transplant of the child from one parent to Despite Recorder Norton accepting the local another.”5 authority’s care plan which indicated that continued direct contact between B and her 1 Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29 [2] 2 Ibid. [3] parents was inappropriate, he invited the parties 3 Adoption and Children Act 2002, s.51A(4)(c) 4 to look again at whether, given the circumstances Re B (n 1) 19 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued…
This model of adoption is best known as the Whilst Wall LJ, as he then was, acknowledged ‘closed model’ of adoption,6 a system which “that matters had moved on very substantially”14 prevailed under the Adoption of Children Act since Re C, with contact post adoption becoming (England and Wales) 1949 which allowed more common, for him the jurisprudence was adopters to conceal their identity.7 clear, “the imposition on prospective adopters of orders for contact with which they are not in Just 6 years after Re C, Ryburn wrote of the agreement is extremely, and remains extremely, importance contact can have in enhancing an unusual.”15 adopted child’s attachment to their adoptive parents which leads to a more positive outlook The enactment of the ACA 2002 now required the towards their biological relatives. This, she court to consider, before making an adoption suggests, is likely to aid the adoptee in the order, “whether there should be arrangements “acquisition of a sense of positive identity”8 and allowing any person contact with the child.”16 affirm the placement. This was a view shared by Fratter, who’s own research found contact It was hoped that its implementation in 2005 provided stability, positive self-identity and the would allow the judiciary to divert from the ability to understand the reasons for adoption thus decision in Re C and find a more pragmatic 17 freeing the child to bond to their new family.9 approach. Importantly, what was now clear was that the child’s welfare was to be the ‘paramount’ As early as 1997, Lindley was writing about the consideration in decisions about post- adoption more ‘open’ approach to adoption10 by which contact but whether that was by virtue of the information was freely exchanged between birth Children Act 198918 or the ACA 200219 remained parents and adoptive parents, differing from the uncertain. closed and secretive model of adoption which has been historically implemented.11 Today in England With the ACA 2002 now in full force, Wall LJ once and Wales, most adopted children have some more had the opportunity to consider post- form of contact with their birth family.12 In most adoption contact in In Re P (Placement Orders: cases, this will be indirect in form and will consist Parental Consent) [2008] EWCA Civ 535. Whilst of what has become commonly known as ‘letterbox’ contact. However, as will be returned to shortly below, this form of contact has been found 5 J.C. Hall, ‘Problems of adoption and custodianship’ [1987] CLJ 40, 42 to be unsatisfactory for both adoptive and birth 6 Bridget Lindley, ‘Open adoption – Is the door ajar?’ [1997] CFLQ parents alike.13 115, 3 7 Ibid. 8 Ryburn, ‘Adopted children’s identity and information needs’ (1995) Whilst adoption agencies have been seen to take 9 (3) Children and Society 41 9 Joan Fratter, Adoption with Contact: Implications for Policy and a more practical approach to post-adoption Practice (British Agencies for Adoption and Fostering, 1996) 5 contact, the courts have seemed reticent to 10 Lindley (n 6) 11Brian Sloan, ‘Post-adoption contact reform: compounding the state- impose contact orders against the wishes of ordered termination of parenthood?’ [2014] C:J, 378, 383 12 adoptive parents. Shortly before the Neil, ‘Post-Adoption Contact and Openness in Adoptive Parents’ Minds: Consequences for Children’s Development’ (2009) 39 British implementation of the Adoption and Children Act Journal of Social work 5, 6 13Brid Featherston et al, ‘The role of the social worker in adoption – 2002 (“ACA 2002”), the Court of Appeal was once ethics and human rights: An Enquiry’ again called upon to consider the barbed issue of [2018] BASW, 11 14Re R (Adoption: Contact) [2005] EWCA Civ 1128 [47] post-adoption contact in Re R (Adoption: Contact) 15 Ibid. [49] [2005] EWCA Civ 1128. 20 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post
Adoption Contact Continued…
acknowledging that “all this now falls to be work practice and child development has revisited”20 in light of the ACA 2002, the court was continued to advocate the importance post- reticent to “presage a more general sea change in adoption contact, amongst other things, in post adoption contact overall”21 but left the door stabilising and supporting an adoptive placement. open to a more flexible approach to post-adoption Since the turn of the decade there have been two contact acknowledging “the 2002 Act envisages substantial bodies of research which require the court exercising its powers to make contact attention.26 orders post-adoption, where such orders are in the interests of the child concerned.”22 The Contact After Adoption Study [2013]
In Re J (A Child)(Adopted Child: Contact) [2010] This extensive piece of research was conducted EWCA Civ 581, the Court of Appeal considered in in three individual stages before a final report was detail the decision in Re P and whether, in released titled ‘The Contact after Adoption 27 granting that appeal on its individual facts, the Study’ in 2013. Stage one, which commenced in earlier decision of Re R that “the imposition on 1996, focused on practice of Social Workers and prospective adopters of order for contact with the views of face-to-face contact between which they are not in agreement is extremely, and adoptive and birth parents; Stage two followed up remains extremely, unusual” had been displaced. on those children and families some seven years In his leading judgment, Neuberger MR, as he later and finally; Stage 3 again returned to those then was, concluded it had not. Importantly, he from Stage 2 to follow once more as they attained made clear that in making any order for post- adulthood, seeking to understand the impact of various contact arrangements on them, their adoption contact welfare lays in S.1 of the 28 Children Act 1989, as had been done in Re P. As adoptive parents and birth family. Sloan rightly points out, the extended meaning of Key Findings Stage One: ‘welfare’ in the 2002 Act23 was jettisoned in favour for the old, conservative approach to the . There appears to be no consistent subject.24 approach to post-adoption contact with some taking place in the birth parents or Just several months later in Re T (Adoption: Contact) [2010] EWCA Civ 1527, Wilson LJ, with whom Sir Nicholas Wall, who by now was 16 Adoption and Children Act 2002, s.46(6) President of the Family Division, agreed, 17 Sloan (n 11) [384] 18 Children Act 1989, s.1 accepted that “the imposition on prospective 19 Adoption and Children Act 2002, s.46(6) adopters of an order for contact with which they 20 Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 [147] are not in agreement is extremely, and remains 21 Ibid. [154] extremely, unusual” was an “established principle” 22 Ibid. 23 Re C (A Child)(Adoption: Duty of Local Authority) [2007] EWCA and that the very recent decision of Re J had Civ 1206, [18] (Arden LJ) – ‘Subs (4) (c) explicates the extended reaffirmed the “general approach”.25 meaning of the child's welfare, and requires the court to look at the likely effect on the child throughout the child's life of having ceased to be a member of the original family and having become a member Academic Research and Post-Adoption of his or her adoptive family.’ 25 Re T (Adoption: Contact) [2010] EWCA Civ 1527 [22] Contact 26 Beckett, ‘Beyond together or apart – Planning for, assessing and placing sibling groups’ CoramBAAF 2018 – Readers may find it Away from the court room a continued and helpful to consider the research presented in this publication albeit this is not considered in this article. growing body of academic research into social 21 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued…
adopters’ home, with others electing for . frequency was low and although some social worker supervised contact. There contact was established for relationship are many variations and no uniform maintenance, most were to support the approach. child’s identity needs.
. Flexibility is required when contact . Overall, the children found contact continues post-adoption as plans on positive and helped them feel cared for either side change. Both adoptive and by their birth parents whilst others birth families were most content when welcomed the opportunity to learn more contact suited the needs of the about their relatives and their identity. individuals. Any negative feelings felt by the child were due to a lost contact e.g. they . The significance of the contact was not didn’t receive a birthday/Christmas card understood by the children, due to their from a relative. young age, but were often enjoyable. . Many adoptive parents were positive . Direct contact supported the adoptive about direct contact, allowing both them parent in developing a sense of empathy and the child to gain a greater insight for both the child and the birth family. It into the birth family, their history and was found that such contact dispelled particularly for the child their history. adopter worry including, eliminating Further, those birth relatives which fears of a threat to the adoptive committed to ongoing contact were relationship with the child and negative generally supportive of the adoptive views of the birth family. Contact also placement. Again, those adopters who allowed adoptive parents to feel an were unhappy tended to be so because immediate benefit, whilst able to reflect contact had abruptly stopped and that contact carried benefits long term affected the child’s welfare. for the child. . Whilst direct contact was viewed as a . Birth parents acceptance of adoptive positive by most birth relatives as an parents developed slowly once birth opportunity to show the child they were relatives had the opportunity to reassure loved and remembered, some felt themselves about the adopters qualities negative about or restricted by the rules through their own assessment at imposed or by being watched by social contact. workers in supervised visits. Key Findings Stage Two:
. Much like Stage One, contact plans 27 Professor Elsbeth Neil et al, ‘Contact After Adoption: A Follow Up varied widely as to who contact was In Late Adolescence’ [2013] ,
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Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued… Key Findings Stage Three: . Practitioners must also be aware of any practical difficulties including birth . Over the course of time, nearly 17 relative’s ability to read and write which years, contact arrangements had may impact letter writing and any other changed with 50% reducing in frequency additional support which may be needed or ceasing altogether. Many changes in response to mental health or feelings were enforced by adoptive parents to of loss or grief.29 meet the child’s needs, but in adolescence the children suggested or It is perhaps helpful to include a quote from the implemented changes in contact final report’s conclusion which states: themselves. “The importance of the qualities of the adoptive . Social media was found to have been parents and birth relatives involved, particularly used by the participants since the rise of their management of issues of dual connection, platforms such as Facebook allowed their focus on the child’s needs, and their easy connectivity. There was mixed empathy for the other parties in contact has reception as to its usefulness and was remained evident. Contact has continued to often unhelpful where the child lacked appear to be more than just a letter or a meeting; the ability to cope with the interaction. it is a relational process which takes place between adoptive parents, adoptive children and . Birth relatives, adopters and children birth relatives. Managing the dynamics of this found contact offered a number of relational process requires effort from all involved benefits including the ability to learn but can yield rewards which can in turn impact more about their birth family and positively on contact.”30 developing a relationship. The key issues seemed to centre around Contact is more than a transactional process, it is practicalities such as travel, the rules a relationship between all involved, and as the imposed by the adopters and or dealing research suggests needs time, either at the with the emotions brought on by contact. beginning of a placement, or indeed later on, to be nurtured and to grow. The authors, having undertaken the longitudinal study, made, amongst others, the following ‘The role of the social worker in adoption – ethics recommendations for social work practice at the and human rights: An Enquiry’ conclusion of Stage Three: More recently, in their study ‘The role of the social . Ensuring that all parties understand the worker in adoption – ethics and human rights: An purpose and goals of contact is likely to Enquiry’31, Professor Featherstone et al undertook yield in a successful arrangement. a wide-ranging analysis of adoption. Whilst the enquiry focused on many aspects of adoption, . There are no size fits all approach to post-adoption contact and any plans should be sensitive to the individual 29 Professor Elsbeth Neil et al, ‘Contact After Adoption: A Follow Up wishes, feelings, and strengths and In Late Adolescence’ [2013] difficulties of all the parties and provide
Re B: (A Child) (Post-Adoption Contact ) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued… it did make findings in relation to post -adopt ion like and what might be needed to support it being contact, namely: done carefully and thoughtfully”1 a view which has been shared by some in the senior Judiciary. . Letterbox contact remains the preferred method of contact in England and Wales Judicial Commentary with direct contact remaining rare. However, the enquiry found that lack of Whilst academic research continues to postulate resources, compounded by recent a change of approach in post-adoption contact, austerity measures, often results in the judiciary have been considering whether, letters being stopped unilaterally with no given the modern age, there is now a real need to explanation as to why. Furthermore, reconsider the approach to post-adoption contact. both birth parents and adoptive parents Academic research has championed the need for 32 found letterbox contact unsatisfactory. children to develop a sense identity and knowing It should be noted that in Northern of their birth family not only to secure their Ireland, direct contact is encouraged adoptive placement but where of an appropriate and can sometimes take place as much age to prevent feelings of loss and of the 33 as 6 times per year , although insecurity of the unknown. Lord Ward professionals and adopters alike acknowledged this in Re G (Adoption Contact) expressed concerns at being expected [2003] 1 FLR 270 noting: to facilitate contact at such frequency given the lack of support.34 “benefits of contact, … comes from the children simply knowing who the natural parental figures . Severing relationships was also noted are. It is to remove the sense of the ogre, as they as a concern with the reunification later reach adolescence and begin to search for their in life widespread, indeed it was noted own identity, with the double crisis not only of that “[t]he absence of physical presence adolescence itself but of coming to grips with the may…mean [feelings of loss] are more fact that they are adopted. That is why the current powerful.”35 It was suggested that earlier research is in favour of some contact in periodic contact may help to support adoption.”39 letterbox contact and in turn provide more favourable outcomes for those The prominence of social media has led some, as 36 impacted by the adoption. King LJ did in her Hershman/Levy Memorial Lecture in June 2013, to ask whether it is possible . A move away from standardisation of to truly regulate the contact between the adopted contact arrangements was considered child and their biological family40 although this will necessary by many participants, with a not be considered in this article. need for a more child centric focus allowing different contact planning for children of different ages who may have 30 different needs and wishes.37 Ibid. [292-293] 32 Ibid. [11] 33 Ibid. [12] K In stating its recommendations, the enquiry made 34 Ibid. 35 it clear “that the need to think about how we might Ibid. [11] 36Ibid. do adoption differently…It seems timely to 37 Ibid. [12] 38 consider what a more open model might look Ibid. [40] 24 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post
Adoption Contact Continued… In his Bridget Lindley Lecture in 2018, McFarlane The Legislative Framework LJ, questioned whether ‘the old case law’ is still good law particularly given the implementation of The coming into force of the Children and s.51A’s wide reaching powers. He rightly Families Act 2014 in April 2014 inserted two new questions: sections to the ACA 2002 regulating contact post- adoption, section 51A and 51B. Section 51A “Is it right that the views of the adopters should orders can allow or prohibit contact with a named hold such sway? In all other respects, those individual. Any person save for the adopters, or before the court who hold a contrary view on any the child must apply to the court for permission topic are told that “what is best for the child” must before making such an application. prevail. Why, if face to face contact would benefit a child, not necessarily now but in some time after In deciding whether to grant leave, the court must she has settled down, should the adopter have an consider any risk posed by granting such contact, effective veto?”41 the applicant’s connection to the child, and any representations from the child or their adoptive After all, if S.1 of the Children Act 1989 requires parents. the court to take the child’s welfare as its paramount consideration, why do adopters It only applies where an adoption agency has or continue to hold such power? was permitted to place a child for adoption and where the court has made or is making an order In 2018, addressing the NAGALRO conference, for adoption in respect of the child. The Professional Association for Children's Guardians, Family Court Advisers and The decision in Re B Independent Social Workers, McFarlane LJ went This is the first time the court has had the on to say: opportunity to consider the new post-adoption “I would encourage all those involved in adoption contact regime since the enactment and coming planning and decision making to focus more on into force of the Children and Families Act 2014, the issue of contact and to ask, in each case, which inserted Section 51A into the ACA 2002 whether the model of life-story work and letterbox and is therefore an important first decision of the contact is in fact the best for the individual child in Court of Appeal. the years that lie ahead for her, or whether a more It was the President’s judgment that whilst s.51A flexible and open arrangement, developed with ACA 2002 provided a bespoke statutory scheme, confidence and over time, may provide more there is nothing in the words of the statute which beneficial support as the young person moves on suggested that a departure from the orthodox towards adolescence and then adulthood.’42 approach of Re R should be taken and that s.51A A view supported by both substantive pieces of sought to “enhance the position of adopters rather 43 research discussed in this article. than [weaken it].” It should be noted that the substantive appeal in Re B failed. Before commenting on the impact of Re B it is 39 Re G (Adoption Contact) [2003] 1 FLR 270, [14] worth briefly considering s.51A and the impact it 40 King LJ, 'May I be your Facebook friend?' Life stories and social has had on the ACA 2002. media' [2013] Fam Law 1399 41 McFarlane LJ, ‘Holding the risk: the balance between child protection and the right to family life’ [2017] Fam Law 610, 616 M 42McFarlane LJ, ‘Contact: A point of View’ [2018] Fam Law 687, 688
L 25 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued… However, Nicholas Goodwin QC, for Comment Warwickshire County Council, asked the court, given the importance of the decision and the Although there is now a strong body of research substantive body of academic research and suggesting that post-adoption contact can be continued judicial commentary, to endorse the beneficial, albeit not in all circumstances, the following six submissions: court has chosen to affirm the orthodox position. If, as discussed earlier in this article, post- a) adoption agencies to ensure that all adoption contact can yield positive outcomes for prospective adopters and all adoption both adopted and adopter, why then do adopted social workers fully understand the parents continue to hold the power and maintain developing research when undergoing an ability to veto contact decisions? training and approval; b) in every case where post adoptive contact In his judgment McFarlane P states, is a realistic option, local authority should ‘…[A]ny development or change from previous file, during placement proceedings, the practice and expectations as to post-adoption best information available as to the pool of contact that may arise from these current ‘open’ adopters nationally to ensure this is initiatives will be a matter that may be reflected as specific to the subject children as in welfare decisions that are made by adopters, possible; or by a court, on a case by case basis. These c) the social worker and children’s guardian are matters of 'welfare' and not of 'law'. The law to consider the significance of the remains, as I have stated it, namely that it will research studies in every case; only be in an extremely unusual case that a d) the court to provide full reasons on any court will make an order stipulating contact S.26 contact application; arrangement to which the adopters do not e) sibling contact to be considered as an agree.’47 entirely separate exercise to parental contact; and f) an open and frank dialogue between However, when one considers the paramountcy social workers, prospective adopters and principle contained within S.1 of the Children Act birth parents and, if sufficiently mature, 1989, it can hardly be said that post-adoption siblings about the child’s needs, possibly contact may not always be in the child’s best with a face-to-face meeting…44 interest just because an adoptive parent is resistant to the prospect. Had the court chosen to McFarlane LJ, now President of the Family endorse Nicholas Goodwin QC’s submissions, Division, whilst cautious not to elevate any of the with particular reference to submission (b), it submissions to “something which the Court of would require adoption agencies and local Appeal has stated should now be required in authorities to find adopters, nationally, which are every case”45 he was clear that “any social open and supportive to post-adoption contact worker, children’s guardian or expert who is where this is in the best interests of the child. required to advise the court on the issue of contact, will ensure that they are fully aware of
any current research and its potential impact upon 43Re B (n 1) [54] the welfare issues in each particular case.”46 44Ibid. [50] 45Ibid. [60] N 26 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued… The benefits of post - adoption contact to adoptive submissions to be developed on the quality of the parents must not be forgotten. As the research evidence given by social workers and Guardians expressly states, post-adoption contact can are not aware of the research. Accordingly, legal reinforce a child’s placement by freeing up practitioners should ensure that they undertake to: emotional worry and thus allowing the child to bond with their new parents. This, it is argued, . Keep abreast of developing research can only be beneficial to an adopter and had the within the post-adoption arena. If Court chosen to endorse Mr Goodwin QC’s professionals are relying on this research submissions, again this information would be to guide their opinion, we must be able to required by law to be delivered to prospective analyse their evidence through the prism adopters to allow an informed decision before of the emerging research and be prepared committing to an adoption. to effectively challenge it.
McFarlane P’s noted that: . Be proactive, it isn’t necessary to wait until a later date to raise issues of post- “ACA 2002, s 51A has been brought into force at adoption contact. We must continue to a time when there is research and debate raise issues as early as care and amongst social work and adoption professionals placement hearing, and later on at which may be moving towards the concept of adoption hearings now that the ACA 2002 greater 'openness' in terms of post-adoption provides a joined-up approach. contact arrangements, both between an adopted child and natural parents and, more particularly, . Ensure that reports prepared by the between siblings... [However], the juxtaposition in Children’s Guardian consider the timing between the new provisions and the wider emerging research. Be prepared to debate does not indicate that the two are linked.” challenge reports that don’t adequately 48 deal with post- adoption contact through the prism of developing and credible Given McFarlane P’s extrajudicial comments just research. 12 months earlier and the growing authoritative and respected research, it was disappointing to . We must work with our clients to ensure the practitioner that he didn’t go further and that current practice is reflecting the elevate some, if not all, of Mr Goodwin QC’s emerging research. It is important that this submissions to a good practice model guide. research informs social workers and adoption panel practice and information In light of the decision in Re B what does it mean giving so that prospective adopters are for practitioners? aware of the benefits of post-adoption contact. The future of post-adoption contact following Re B for practitioners
McFarlane P’s observations still give a green light
to practitioners to consider Nicholas Goodwin QC’s submissions as good practice for social 46 Ibid. 47 workers, guardians and experts. If nothing else a Ibid. [59] O 48 Ibid. failure to know about the research will allow 27 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3
Re B: (A Child) (Post-Adoption Contact) [2019] EWCA Civ 29: Where Next for Post Adoption Contact Continued…
. Be prepared to ask for a S.26 Order on a placement application on behalf of a parent if there is merit and also on behalf of the child with its siblings (if representing the child), if the factual circumstances make the preservation of an enduring sibling relationship critical for the child’s welfare.
Liam Kelly Pupil Barrister
28 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3 MEMBERS OF CHAMBERS Stephen Grime QC 1970 QC 1987 Tim Horlock QC 1981 QC 1997 Stuart Denney QC 1982 QC 2008 Susan Grocott QC 1986 QC 2008 Mary O’Rourke QC 1981 QC 2009 Jane Cross QC 1982 QC 2010 Lewis Power QC 1990 QC 2011 Michael Hayton QC 1993 QC 2013 Julia Cheetham QC 1990 QC 2015 Peter Atherton 1975 David Eccles 1976 Timothy Ryder 1977 Nick Fewtrell 1977 Ruth Trippier 1978 Hugh Davies 1982 Timothy Trotman 1983 Russell Davies 1983 Glenn Campbell 1985 Paul Humphries 1986 Karen Brody 1986 Christopher Hudson 1987 Heather Hobson 1987 Nicholas Grimshaw 1988 Bansa Singh Hayer 1988 Ciaran Rankin 1988 Peter Smith 1988 Jonathan Grace 1989 Robin Kitching 1989 Michael Smith 1989 Michael Blakey 1989 Janet Ironfield 1992 Timothy Edge 1992 Alison Woodward 1992 Fraser Livesey 1992 Lisa Judge 1993 Peter Horgan 1993 Rosalind Scott Bell 1993 Sebastian Clegg 1994 Peter Rothery 1994 Kate Akerman 1994 Carolyn Bland 1995 David Boyle 1996 Simon McCann 1996 Archna Dawar 1996 Adam Lodge 1996 Elizabeth Dudley-Jones 1997 Sophie Cartwright 1998 Richard Whitehall 1998 Daniel Paul 1998 Sasha Watkinson 1998 Joanna Moody 1998 Ross Olson 1999 Pascale Hicks 1999 Sarah J Booth 1999 Virginia Hayton 1999 Elizabeth Morton 1999 Susan Deas 1999 Joseph Hart 2000 Rosalind Emsley-Smith 2001 Anthony Singh 2001 Robert McMaster 2001 Zoe Earnshaw 2001 Alex Poole 2002 Alex Taylor 2003 William Tyler 2003 Victoria Heyworth 2003 http://deanscourt.co.uk/our-barristers/daniel-glover Rebecca Gregg 2003 Anna Bentley 2004 Doug Cooper 2004 Mark Bradley 2004 Jonathan Lally 2005 Michelle Brown 2005 Arron Thomas 2005 Victoria Harrison 2006 James Hogg 2006 Helen Wilkinson 2007 24 St John Street Rachel Greenwood 2008 Manchester M3 4DF Michael Jones 2008 Jonathan King 2009 Phone: 0161 214 6000 Eliza Sharron 2009 Nilufa Khanum 2009 Fax: 0161 214 6001 James Paterson 2010 Simon Edward Rowbotham 2011 Emily Price 2012 DX: 718155 Manchester Junaid Durrani 2009 Daniel Glover 2013 E-mail: [email protected] Gareth Poole 2014 Patrick Gilmore 2014 www.deanscourt.co.uk Harriet Tighe 2014 had demonstrated that they were induced to enter Zoe Dawson 2015 Prudence Beaumont 2016 into the contract of insurance,Senior Clerk: Matthew on the Gibbons terms Zara Poulter 2017 Claire Athis 2017 agreed, by material non -disclosure. Sonny Flood 2017 Adrian Francis 2018 29 As to misrepresentation,MEMBERS the OF CourtCHAMBERS found that the 0161 214 6000 [email protected] WWW.DEANSCOURT.CO.UK figure “13,000,000” entered on the proposal form DEANS COURT CHAMBERS, 24 ST. JOHN STREET, MANCHESTER, M3 4DF FAX: 0161 241 6001 DX: 718155 MANCHESTER 3 could only reasonably be understood as a Craig Sephton QC 1981 QC 2001 representation that the managers, for the Claimant, believed theStephen market Grime QC value of the1970 Yacht QC 1987