The petition of Rebecca Gaffney,
Declares that the petitioner is the mother of a four year old girl who has been placed for non-consensual adoption by Essex Children's Services. The arguments used to justify this by the Local Authority have varied over time, including relying on hearsay. Further, although she passed all drugs tests from her General Practitioner, a court-appointed expert made findings against her. She was given permission to appeal, and the court-appointed expert accepted he was wrong. However, her child was not returned to her care as she was considered to be settled with adopters.
The petitioner therefore requests that the House of Commons Education and Justice Committees investigate the use of adoption targets by Local Authorities and whether they impact on the independence of evidence provided to the courts; further requests that cases like hers, where children are adopted even though the case against the parent is disproven, are considered when reviewing how procedures operate in care proceedings, and how experts are not prosecuted for giving false information, and how people in her position might obtain a re-hearing of the case.
And the petitioner remains, etc.—[Official Report, 6 March 2017; Vol. 622, c. 19P.]
[P002023]
Observations from the Minister of State, Department for Education (Mr Robert Goodwill): The Government do not set targets in relation to adoption. Whilst it believes that adoption can be the right permanence option for some children, it is also clear that decisions must be made in the best interests of each individual child and by the independent courts (drawing on evidence from local authorities and others).
It is important also to recognise that the Association of Directors for Children’s Services (which represents senior leaders in local authorities across England) has commented on targets:
“Local authorities were challenged to increase the effectiveness of their adoption processes several years ago including increasing the number of adoptions as children were perceived to be waiting too long for adoptive parents or ending up missing the opportunity for adoption due to lengthy care proceedings...Some are likely to have set targets to increase adoptions if they have been challenged for the low number of adoption outcomes achieved. Irrespective of any targets in place the welfare of the child remains the paramount consideration during care proceedings and where adoption is not in the best interest of the child it will not be pursued...The ultimate safeguard is the court which will not agree to the removal of a child into care unless this can be evidenced to be right for the child and will not agree to adoption as a plan unless that is also believed to be right for the child”.
It follows that the Government believe that the law in this area is clear and that there are sufficient safeguards in place to ensure that the views of birth parents are heard before any court decisions are taken on whether a child should be taken into the care of a local authority or be adopted in England.
The law sets out that children should live with their birth parents wherever possible, and that families should be given extra support to help keep them together. In most cases, support from the family’s local authority enables any concerns about the child or their family to be addressed and for children to remain with their families.
However, in some situations where a child is identified as suffering significant harm (or at risk of suffering significant harm) and that is attributable to the care given to the child the local authority has a statutory duty to intervene to undertake child protection enquiries and to take action to safeguard and promote the child’s welfare.
In every case where a child is taken into care, the local authority must apply for an order before a court and the parents will have the opportunity to refute any allegations being made and contest the case. The court must consider all the evidence before it and then can only make a care order where it concludes that there is reasonable cause to believe that the child is suffering from, or is likely to suffer, significant harm and this is attributable to the care given to the child, or likely to be given to him if the order were not made. Where the court makes an order placing a child in the care of a local authority, the authority should continue to work with the family with a view to the child returning home. However, a stage may be reached where it is apparent that the child cannot return home. It is at this stage that the local authority must make alternative plans to provide the child with a permanent placement.
When considering placements for children in care, local authorities have a legal duty to first consider care arrangements by family and friends, including those living outside the UK. Where a placement with the child’s parent is not possible, the responsible authority should place the child in “the most appropriate placement available”, that is, the one that they consider will best promote and safeguard the child’s welfare. In determining which is the most appropriate placement the local authority must “give preference to” a placement with a connected person i.e. a relative, friend or other person connected with the child who is also a local authority foster parent, reflecting the principle that children should, wherever possible be brought up in their families and communities. The court will consider whether local authorities have met their legal duties on this issue.
Adoption is one permanence option that is open for a local authority to consider. The law on adoption makes clear that children cannot be adopted without their parents’ consent unless the court is satisfied that the welfare of the child requires the parents’ consent to be dispensed with. This might be because the court is satisfied that the parents cannot be found; because they are incapable of giving their consent or because it has reason to believe the welfare of the child requires consent to be dispensed with.
It is important to be clear that parents have legal representatives who are appointed to support them and ensure their views are heard, and to help them challenge any evidence put forward. Where, despite these checks and balances in the system, there are concerns about any individual case and its conclusion, cases can be subject to appeal. Birth parents are able to appeal against: the decision to take their child into care; contest decisions to place the child for adoption; and they may also seek leave to appeal a decision to make an adoption order. Legal representatives will be able to advise parents on appeals processes. The paramount consideration of the court when making any decision is the child’s welfare throughout his or her life.
Further details of the legislative framework can be found in statutory guidance issued by the UK Government to local authorities in England called The Children Act 1989 Guidance and Regulations—Volume 2: Care Planning, Placement and Case Review which can be found at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/441643/Children_Act _Guidance_2015.pdf ;
in Statutory Guidance on Adoption which can be found at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270100/adoption_ statutory_guidance_2013.pdf
in Statutory guidance on Court orders and pre-proceedings which can be found at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/306282/Statutory_guidance_on_court_orders_and_pre-proceedings.pdf
The Government, of course, review legislation, statutory guidance and procedures from time to time—both to reflect changes in policy but also the experiences of those either working in or engaging with child protection authorities and the wider family justice system.
In relation to expert witnesses and the evidence that they give, the Children and Families Act 2014 contains provisions which set out the threshold relating to the use of expert evidence. This includes a duty on the court to permit expert evidence to be put before it only when it is necessary, in the opinion of the court, to assist the court to resolve the proceedings justly.
Where the court does give permission for expert evidence to be put before it, the expert has an overriding duty to the court (rule 25.3 of the Family procedure Rules 2010). It is the duty of the expert to help the court on the matters within their expertise. The duty to the court overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
The overriding duty to the court is referred to in paragraph 3.1 of Practice Direction 25B entitled “The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court”. Paragraph 9.1 of this Practice Direction sets out what the expert’s report must contain and this includes a statement that the expert understands their duty to the court and has complied with that duty. The expert also has to state that he or she has complied with the Standards for Expert Witnesses in Children’s Proceedings set out in the Annex to Practice Direction 25B. One of the standards is that the expert has a working knowledge of, and complies with the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. The expert’s report then has to be verified by a statement of truth given by the expert.
Practice Direction 25C (Children Proceedings—The Use of Single Joint Experts and The Process Leading to An Expert Being Instructed Or Expert Evidence Being Put Before The Court) states that wherever possible, expert evidence in children proceedings should be obtained from a single joint expert instructed by both or all of the parties. “A single joint expert” means a person who provides expert evidence for use in proceedings on behalf of two or more parties (including the applicant) to the proceedings.
Statutory guidance – “Court orders and pre-proceedings”
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/306282/Statutory_guidance_on_court_orders_and_pre-proceedings.pdf—for local authorities, produced by the Department for Education, outlines the provisions for the use of expert witnesses in courts.
We would expect local authorities and the courts to act in accordance with the statutory guidance and practice directions, ensuring that any expert witness is just that.
In relation to the prosecution of expert witnesses for giving false information, like all those called to give evidence in court, expert witnesses are required to give evidence under oath and to be cross examined by the legal representatives of the parties to the case in which they are giving evidence. If it is proven that an expert witness told a deliberate lie under oath then, depending on the status of the case, they could be open to potential action (including prosecution) under either contempt of court provisions or the laws pertaining to perjury. However, it is important to be clear that a distinction has to be made between an expert witness telling a deliberate lie and simply offering their expert opinion—which might be based on research or professional practice—with which a party to a case may disagree.