Care proceedings should not omit assessment of wider family ‘on parents’ say-so’, judge rules

Court rejects father's attempt to keep existence of children hidden from his family in adoption case

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Social workers should not avoid assessing a child’s wider family during care proceedings based solely on the wishes of a parent, a judge has ruled.

In a judgment published this month concerning a five-month-old boy, ‘H’, already in foster care, Mr Justice Cobb rejected a father’s attempt to conceal the existence of the baby and two siblings, ‘F’ and ‘G’, from his parents and other relatives.

F and G had already been placed for adoption at the time of the hearing, while the parents – who had a history of drug and alcohol misuse and domestic violence – were still seeking to resume care of H.

In the event this proved unsuccessful, the father had confirmed he would prefer H be adopted than his family be made aware of the child. The court heard that embarrassment about his lifestyle was a key factor in this stance.

Justice Cobb acknowledged there were cases where factors – such as potential risk to a child, or to parents’ wellbeing – could mitigate against involving the family members.

“But in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent,” the judge concluded.

‘Strong family unit’

The unnamed local authority in the case, backed by the children’s guardian, sought leave to contact the father’s family to establish whether any members – in particularly the paternal grandparents – might be in a position to care for H.

The maternal family were already aware of the existence of the baby as well as F and G, but had declined to put themselves forward as potential carers.

H’s father had filed a statement saying that he did not believe anyone in his family would be able to care for the child. He had cited his parents’ health and life circumstances, adding: “I do not want to burden them with the knowledge that their grandson is subject to court proceedings and might be adopted when there is nothing they can do about it.”

The father also mentioned a half-brother and sister with whom he said he had little contact, implying that they would also not be suited to caring for H.

But the judgment noted that social workers’ assessment for the local adoption panel recorded the father speaking of a “strong family unit” within which he had enjoyed a happy childhood, and which he continued to see regularly.

“[The father] was reserved in disclosing his parents views of his lifestyle,” the assessment was quoted as saying. “It appears that his parents are not aware of the births of [G] or [H] and he is adamant he does not want them to know, and would rather his children be adopted then them know.”

‘No free-standing duty’

In evaluating whether the local authority had a duty to assess the wider family, Justice Cobb referred to another recently published judgment in which Mrs Justice Theis reprimanded Greenwich council for failing to consider placing two children with their maternal aunt.

But despite that case flagging the importance of councils being proactive in making enquiries around children’s wider families, Justice Cobb concluded it did not refer to any “free-standing duty” for them to do so.

With that in mind, the judge said there was a need to “conduct a reasonably widely-drawn review of statute, guidance and case-law”.

He noted that while legislation was supportive of wider family engagement, there no provisions within either the Children Act 1989 or the Adoption and Children Act 2002 that required a council to consult with family members.

But the judge found guidance issued by the Department for Education placed emphasis on local authorities “identifying and prioritising suitable family and friends’ placements, if appropriate”.

He also quoted from a Family Rights Group good practice guide, which states: “Where a child cannot live with their parents, it is the duty of local authorities to work with parents and relatives to identify whether there is anyone within the child’s network of family and friends who can provide safe and appropriate care.”

‘Discomfort should not dominate my decision’

Turning to case law, Justice Cobb drew parallels between the case and a 2007 judgment in which a father did not wish for his devout Muslim parents to know of his child’s birth, on the grounds that he might suffer ostracism.

In that instance, the judge ruled that the child’s best interests and rights superseded the father’s wish to preserve his position within his family.

Justice Cobb also noted the often-quoted ‘Re B’ and ‘Re B-S’ rulings, which set a high bar for assessing all options before considering adoption in cases where “nothing else will do”.

But he added that courts had not suggested councils had a duty to “uncover every stone nor exhaustively examine the ground” when it came to to considering family members as potential carers.

“Consequently, the court, and/or the local authority or adoption agency, is enabled to exercise its broad judgment on the facts of each individual case,” the judge said, “taking into account all of the family circumstances, but attaching primacy to the welfare of the subject child.”

Justice Cobb said he was “not insensitive” to shame and embarrassment felt by H’s father, and his fear of possible rejection should they discover a part of his life he had kept hidden. “But I cannot allow his discomfort or embarrassment or the risk of rejection to dominate this decision,” he said.

The judge added that the worst outcome for H would be to learn, years down the line, that his father had felt too awkward to reveal his existence to his family, who might have cared for him. The court should not – “without cogent or compelling reason” – condone or enable such a sequence of events, Justice Cobb said.

‘Well-considered’ decision

Responding to the judgment, Cathy Ashley, chief executive of the Family Rights Group described the judge’s decision as “well-considered”.

“Importantly, in his summing up, Mr Justice Cobb also states that by notifying the wider family of H’s existence, now they will have the chance to contribute to life story work for H, even if they cannot care for him,” Ashley said.

Ashley noted that the Initial Family and Friends Care Assessment good practice guide, drawn up by Family Rights Group in conjunction with child welfare and family justice organisations, practitioners and family members, had been quoted at length in the judgment.

“We would urge all local authorities to use the guide to help ensure they carry out careful and thorough work when considering whether a family or friend may be a realistic option to care for a child, who may not be able to remain with their parents,” Ashley said.

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