24 November 2010

FOURTH SECTION
Application no. 62110/10
by S.K. 
against the United Kingdom
lodged on 6 October 2010

STATEMENT OF FACTS
THE FACTS
The applicant is a British national who was born in 1988 and lives in Oldham, Greater Manchester.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother in care proceedings brought by Oldham Local Authority in relation to her daughter, M., born 14 November 2008. Before M.’s birth the applicant underwent a pre-birth assessment administered to her because of her status of having been brought up in care. Following M.’s birth a health visitor and members of the applicant’s family raised concerns about the applicant’s ability to meet M.’s needs. The applicant states that the reports made by her family (including by her sister, who is also the partner of M.’s father, with whom the applicant had had a one or two night stand), were made maliciously. The local authority undertook a core assessment of the applicant and initiated a residential assessment. They brought proceedings and an initial care order was granted on 27 May 2009. M. was placed with foster carers on 6 June 2009. Thereafter, care orders were renewed while non-residential assessments continued, until a final hearing took place between 25-29 January 2010, at the conclusion of which a full care order and a placement order were made, authorising M.’s placement for adoption and dispensing with the applicant’s consent. The judgment from this final hearing is dated 3 February 2010. An adoption order was made on 7 May 2010.
At the January hearing the applicant was not requesting the immediate return of M. to her care (which she accepted would not be possible at that time), but an adjournment of the final hearing to allow for further work and assessments. A number of professionals gave evidence, including a social worker, a member of Abbeyfield Residential Family Centre in Sheffield, a member of “the Goodman Project” (part of the Manchester Adoption Society which carries out assessments of parenting abilities), a psychologist, and M.’s guardian ad litem. The view of these professionals was broadly that the applicant offered an inconsistent standard of practical care to M. (in relation to, for example, feeding and recognising tiredness), that she would not be able to adapt to and meet M.’s changing practical needs, and that she had difficulties forming a bond or attachment to M. The suggestion was that a history of abuse had impaired the applicant’s emotional functioning, which was now impacting upon her own parenting ability. The applicant may have suffered from post-natal depression, but the views of the professionals involved appears to have been that her attachment difficulties were caused by deeper psychological factors relating to her own experience of being brought up in care.
While it was recognised that work could be done with the applicant to address the problems, the difficulty as articulated by the trial judge, HHJ Allweis, was that such work would “not fit with [M.’s] timescales”, since M. needed to “put down roots and permanence and emotionally invest in her carers”. While it was recognised that the applicant had no history of involvement with drinks, drugs, domestic violence or unsatisfactory relationships and there was no doubt as to her love for and commitment to M., HHJ Allweis concluded that she could not meet M.’s needs “in the next few months, and it is too long to wait in the forlorn hope that perhaps things will change through a process of further work”. Referring to the welfare checklist, the judge’s overall finding was that “although it is very much a draconian step, it is an overriding necessity in the interests of [M.] for a care order to be made”, and that “the interests of [M.] are overwhelmingly that she should be adopted”.
The applicant issued various challenges to HHJ Allweis’s decisions. The applicant was not legally represented in respect of any of the proceedings after 3 February 2010.
Initially, she appealed against a case management decision taken at a pre‑trial review on 16 December 2009. This was a decision not to consider her application for an adjournment of the final hearing to allow for further assessment at that stage, but instead to consider the application at the conclusion of the final hearing, when (in HHJ Allweis’s view) he would be well placed to consider whether there were any gaps in the evidence which further assessment could help fill. Due to confusions between the applicant and her counsel and/or the mother’s counsel’s failure to follow her instructions, this case management decision was understood by the judge at the time to have the mother’s consent, and was expressed to have been taken with the consent of the parties present. The appeal against this decision was heard on 16 March 2010. Wall LJ expressly stated that while the appeal was formally against the case management decision taken on 16 December, he would also deal with the real complaint, which was against the ultimate decision of HHJ Allweis contained in his judgment of 3 February 2010, having heard evidence at the January hearing, not to delay the making of a final order to allow for further assessment, but to make a final care order there and then.
A second appeal, this time formally against the 3 February 2010 judgment, was heard and dismissed as being “totally without merit” on 29 April 2010. Wilson LJ considered that the matter had already been dealt with by Wall LJ on 16 March 2010, and said “it would for practical purposes not be open to this court to reverse that decision”, but added, “for the record”, that independently of Wall LJ he had reached the same conclusion that, in accordance with the unanimous opinion of the professionals involved in the case, an order for further assessment and delay in making the final order would run counter to M.’s interests.
The applicant attempted to issue several applications in relation to the adoption hearing on 7 May 2010: for the adoption hearing to be adjourned, for HHJ Allweis to recuse himself from the hearing, for contact with M., for the placement order to be revoked (under section 24 of the Adoption and Children Act 2002), and to challenge (and later, to set aside) the adoption order (under section 47 of the 2002 Act). These applications (which in form may not have been correctly made) were considered and refused by HHJ Allweis for substantial reasons within his 7 May 2010 judgment and in a separate judgment on 17 May 2010. The reasons included a lack of change in circumstances since the original Placement Order was made. An appeal against this refusal was dismissed as being totally without merit by Wilson LJ on 21 May 2010.
B.  Relevant domestic law
The decision to make a care order taking a child into care is governed by the Children Act 1989 (“the 1989 Act”), which provides at section 31(2):
“A court may only make a care order or supervision order if it is satisfied—
that the child concerned is suffering, or is likely to suffer, significant harm; and
that the harm, or likelihood of harm, is attributable to—
the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
the child’s being beyond parental control.”
Additionally all decisions concerning children are taken having regard to the welfare checklist (1989 Act, section 1.)
The placing of a child for adoption is governed by the Adoption and Children Act 2002 (“the 2002 Act”). Under section 21 of this Act, the court may authorise a child to be placed for adoption when it is satisfied that the criteria in section 31(2) of the 1989 Act are satisfied. It may make a placement order which dispenses with the requirement of obtaining a parent’s consent to this course when satisfied that the child’s welfare demands it (as set out in section 1(4) of the 2002 Act, a test which includes, by way of extension of the checklist in section 1 of the 1989 Act, having regard to the child’s welfare “throughout his life”).
The final adoption order (section 46 of the 2002 Act), made on the application of the adopting parent(s), creates the legal ties between the child and adoption parent(s), and severs the legal ties with the birth parent(s).
The grounds on which a placement order can be revoked are governed by section 24 of the 2002 Act, which provides:
“The court may revoke a placement order on the application of any person.
But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless—
the court has given leave to apply, and
the child is not placed for adoption by the authority.
The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made.
If the court determines, on an application for an adoption order, not to make the order, it may revoke any placement order in respect of the child.
Where—
an application for the revocation of a placement order has been made and has not been disposed of, and
the child is not placed for adoption by the authority,
the child may not without the court’s leave be placed for adoption under the order.”
The grounds on which an adoption order can be opposed are governed by section 47 of the 2002 Act, which provides:
“An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).
The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
that the parent or guardian consents to the making of the adoption order,
that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
that the parent’s or guardian’s consent should be dispensed with.
A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave.
The second condition is that—
the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
either—
the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
the child was placed for adoption under a placement order, and
no parent or guardian opposes the making of the adoption order.
A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave.
The third condition is that the child is free for adoption by virtue of an order made—
in Scotland, under section 18 of the Adoption (Scotland) Act 1978 (c. 28), or
in Northern Ireland, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).
The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
An adoption order may not be made in relation to a person who is or has been married.
An adoption order may not be made in relation to a person who has attained the age of 19 years.”
COMPLAINTS
The applicant complains under Articles 3 and 8 of the Convention that that her pre-birth assessment was stressful; that during the post-birth assessment the time she spent with M was too limited and did not permit them to engage in normal activities together; and that the decision to make final care and placement orders was unjustified, based on biased reports and on an undefined and nebulous assessment of future risk. She complains under Article 14 taken in conjunction with Article 8 that in relation to the pre-birth assessment she was discriminated against on the basis that she was herself in care. She complains under Article 6 inter alia that the total time taken for the final care order to be made from the grant of the first interim care order was too short (36 weeks) for a complex case; that adjournments should have been granted; that she has received no adequate explanation why M’s guardian ad litem, during the January final hearing, changed her recommendations from supporting further assessment to stating that such an assessment would not be in M’s interest; and that the final adoption order should not have been made in her absence and when appeals and applications were outstanding.
QUESTIONS TO THE PARTIES
1.  On what basis was the pre-birth assessment administered and what did the assessment involve? Did the pre-birth assessment amount to a violation of the applicant’s rights under Article 8, taken alone or in conjunction with Article 14?

2.  Did the making of the care, placement and adoption orders amount to a violation of the applicant’s rights under Article 8?

3.  Did the applicant’s lack of legal representation at her appeal hearing(s) and applications infringe her effective right of access to the court under Article 6 or her right to respect for her family life under Article 8?