Judge slams ‘outstanding’ council for breaches of law and guidance in ‘biased’ adoption application

'Problems appear to be systemic and wide-ranging,' warns judgment that criticises Bexley council staff from DCS to frontline practitioners

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A family court judge has rebuked an ‘outstanding’ children’s services department for “apparently systemic” problems relating to an adoption application marred by “glaring gaps and distorted arguments” and failures to abide by relevant legislation and guidance.

Evidence provided by Bexley council as it sought a placement order for ‘A’, a four-year-old with complex needs, provided “an effective demonstration of confirmation bias”, said Judge Mary Lazarus, who criticised the local authority for failing to consider the girl’s background and identity in its decision making.

A child permanence report (CPR) compiled by the authority in late summer 2019 was improperly prepared by a social worker not qualified to undertake the work and failed to assess the relative merits of permanence options available to A.

This poor, and potentially criminal, practice was compounded by the actions of an agency decision maker (ADM), who listed only a single factor – A’s age – as rationale for the decision to seek a placement order.

“This is shockingly poor and in breach of the relevant law and guidance,” Judge Lazarus said in a judgment made last month. A’s final hearing had been adjourned from November 2019, because of Bexley’s failures to satisfy the requirements of its placement application – which were still not met by the time of the rearranged session.

The judge, who warned that adoption applications must not become exercises in “rubber-stamping”, also criticised Bexley’s legal team and director of children’s services (DCS) Stephen Kitchman – who was only appointed last summer – for inadequate oversight of the case.

Last month the government was widely condemned by children’s services experts after issuing guidance to DCSs asking them to prioritise adoption above other permanence options.

In A’s case, Judge Lazarus ultimately granted a care order, with an associated contact order, after Bexley – which was given top marks by Ofsted in 2018 – withdrew its flawed application during the rearranged hearing and amended its plans.

‘Rich identities and heritage’

A was born in 2015 into a conservative and religious family of European heritage, who maintained deep ties with their country of origin, which they made extended visits to each year.

She has a complex range of health and developmental needs – including around feeding, continence and language skills – which her birth family struggled to meet.

A was made subject to a child protection plan in 2016 and placed with foster carers three years later at her parents’ request.

Contact had subsequently taken place fortnightly and was positive, Judge Lazarus recorded, with notes revealing “very warm and loving relationships between A and her parents”, albeit with her family requiring some guidance around interacting with her.

Bexley’s initial plan was for an adoptive placement that would enable direct and indirect contact to continue with, the judge noted, finding the placement prioritised over the promotion of contact.

“To be clear, there is no criticism of the making of an application for a placement order itself,” Judge Lazarus said. “There would have been scope for this complex and finely balanced argument to be made properly to the court, and for the court to consider all the aspects of the issues applicable to such a serious step in order to determine the appropriate outcome.”

Social worker’s ‘painful’ evidence

However, the judge said, Bexley council “simply failed to carry out [the] adequate comprehensive evaluation of the issues relevant to A’s welfare, as required by statute and further expanded upon in the above case law” (see box).

The council’s analysis was incomplete, partial and unsupported by sufficient evidence or reasoning, Judge Lazarus added, and emphasised negative observations in relation to A’s family while failing to explore potential disadvantages of adoption.

Adoption and the law

When a council seeks an adoption order, which severs a child’s legal ties with his or her family, a properly designated social worker with at least three years’ experience – including of adoption work – must prepare a child permanence report (CPR). The report, which must contain an analysis of all relevant placement options, is then relied on by the agency decision maker (ADM), who must come to a conclusion based on statute, case law and guidance.

Under the Adoption and Children Act 2002, the ADM must refer to a welfare checklist, which includes weighing the long-term implications of adoption. The ADM must also consider all information surrounding the case, including reports – and that the authors of those reports are qualified.

One key judgment referenced in last month’s Bexley decision was Hofstetter v the London borough of Barnet [2009], which set out good practice guidelines for ADMs – including around listing material used in decision making and identifying key arguments. Another, Re B [2008] saw the Court of Appeal set aside a placement order where serious errors had been made in the process leading to the ADM decision.

Noting that A – unlike many children involved in adoption proceedings – benefited from a large, loving family “holding respectful values [and] celebrating a distinct culture and heritage”, the judge stressed that nuance and thorough assessment was needed.

“Instead, listening to the social worker’s oral evidence was a painful experience,” Judge Lazarus said. “Almost none of those benefits and contrasts were touched on at all…It was difficult to get her to focus on A’s needs and characteristics, as opposed to reciting generalised assertions about adoption.”

The judge said a revised CPR submitted to January’s rearranged final hearing amounted to little more than a lightly expanded cut-and-paste of its predecessor – and that the social worker seemed not to recognised its deficiencies until forced to do so in court.

A second ADM decision, which had been undertaken by the DCS, was “also flawed” due to its being based on the CPR and its too-limited consideration of A’s heritage and the benefits of ongoing contact with her family.

‘Numerous and egregious errors’

In the judgment’s concluding remarks, Judge Lazarus warned that there appeared to be “systemic and wide-ranging” problems at Bexley, including around supervision, training and quality assurance.

“The starting point here is that without the numerous and egregious errors of the local authority, a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing,” she said.

But the judge acknowledged that, thankfully, no harm had come to A and her family as a result of the catalogue of mistakes.

She also said that she welcomed efforts by the DCS to implement improvements, including around recording practices relating to CPRs and by setting up a seminar to explore best practice during the decision-making process.

Bexley was rated outstanding by Ofsted in July 2018, and would usually expect to receive its next full inspection after three years, with a single focused visit on a particular service area taking place between times.

Ofsted guidelines relating to its current ILACS inspection framework make provision for ad-hoc reinspections, as well as more frequently carried out focused visits examining certain areas of practice, when practice concerns are identified.

A spokesperson for Bexley council’s children’s services said the authority was “committed to the wellbeing of our children”.

“Caring for our young people and families is a responsibility we take extremely seriously and our aim is for our professional practice to always be of the high standard we set ourselves,” the spokesperson said..

“We have responded quickly to the learning from this judgement to address the issues of process oversight which have been raised. These are being incorporated into our systems and practice framework. Future reports that lead to decision making will be consistently compliant with the courts’ expectations.”

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