Judge accuses council of “fundamental misunderstanding” of statutory obligations for adoption support
A Family Court judge has criticised a local authority’s failure to understand its statutory obligations in respect of adoption support and to properly assess a family for that support, leading to three applications for adoption taking over 18 months to conclude.
In A v Adopt London North & Ors [2024] EWFC 373 (20 December 2024) Mrs Justice Theis concluded: “Although the issues regarding an Adoption Support Plan have finally been resolved […], part of the delay was caused by a fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support. It was only through the tenacity and expertise of [the applicant’s] legal team and two letters before action that the situation now has been reached where agreement was possible.”
The case concerned adoption applications made in February 2023 by the maternal aunt of three children: B, aged 16, C, aged 16, and D, aged 14.
The children’s birth mother, E, died in a car accident more than a decade ago and their birth father, F, has had no involvement in their lives.
B has significant health needs and has been diagnosed with a neurogenetic or neurometabolic disorder.
Outlining the background to the case, the judge said the children were born in Country X, and lived with their mother until her death. Following their mother's death, the children went to stay with their maternal aunt, A, and their maternal grandmother, G.
In 2017, A was compelled to leave Country X due to persecution as a result of her political activities. A moved to the United Kingdom as a political refugee in 2018 and was granted asylum here.
Following their arrival in the United Kingdom, the children were placed with A in a one-bedroom apartment.
They were assessed by the local authority's Early Help team who noted the 'ease and comfortable dynamic in the family' and the 'warmth and care between all members of the family'.
The judge noted: “No concerns were raised about A's care of the children, although the assessment records concern about overcrowding and A's lack of parental responsibility regarding the children.”
The proceedings originally arose out of a separate application by a hospital trust to undertake diagnostic tests and offer treatment in relation to B.
The judge noted that although there was no dispute between A and the hospital, the hospital felt compelled to seek the court's permission, due to the lack of anyone in the United Kingdom who had parental responsibility for B.
A subsequently applied for a child arrangements order for all the children and sought leave to apply for an adoption order, as the children had not been living with her for three years as required by the Adoption and Children Act 2002 (ACA 2002).
In October 2022, Mrs Justice Theis made orders that gave A leave to apply for an adoption order, dispensed with the need to serve or give notice to the birth father, and made child arrangements orders in respect of all the children in favour of A, so she had parental responsibility for all the children.
In February 2023 A applied to adopt the children.
The judge noted: “The Local Authority prepared an Annex A report in August 2023 which supported adoption orders being made. In relation to adoption support the report failed to include any assessment of the family's need for adoption support services and contained the legally incorrect assertion that 'the placement is not eligible for adoption support' as it was a 'non-agency adoption'.”
The Children's Guardian report, dated 8 September 2023, supported the making of an adoption order.
Mrs Justice Theis noted that when the matter returned to court the next month, it had been hoped that would be the final hearing.
However, due to the failure of the local authority to undertake an assessment of the family's adoption support needs, the matter could not be concluded.
Mrs Justice Theis made directions for the local authority to file the adoption support assessments, as required under the relevant legal framework.
The adoption support assessments proposed a one-off payment to cover the costs of the relevant applications to secure the immigration status of the children, and no ongoing adoption support allowance.
At a hearing in December 2023, the judge directed disclosure of the decision making records from the local authority and a statement from the Agency Decision Maker in relation to the decision not to provide such support.
The next hearing in February 2024 was adjourned as A's legal team informed the court that A was going to commence judicial review proceedings against the local authority. The matter was listed for review on 30 July 2024.
In March 2024 A served a pre-action protocol letter on the local authority.
Two days later, the local authority agreed to re-assess the family's needs for adoption support, including ongoing financial support.
In July 2024, following “repeated chasing” by A's solicitors, the local authority stated the assessment would be completed by 25 July 2024 and A would be informed of the outcome before the next hearing on 30 July 2024, the judge noted.
However, no assessment was available before 30 July 2024 which meant the hearing had to be adjourned to 16 August 2024.
On 5 August 2024, the local authority confirmed in writing the proposal that A would receive the one off payment related to the immigration application to secure the children's status here and £9,226 to support A with the medical bills.
The assessment did not include any ongoing adoption support allowance.
The judge observed: “The assessment contained no explanation to underpin [its] conclusions, no evidence of any means test having been undertaken and no evidence of any consideration having been given to A's outgoings. It also did not explain why the local authority continued to propose that A would be worse off than if she had applied for a special guardianship order.”
A's solicitors served a second pre-action protocol letter in September 2024.
The local authority responded with a further decision in November 2024 which included an ongoing allowance for each child totalling £766.50 per week, but it had revoked its previous agreement to meet medical treatment costs, which were over £10,000.
Following further discussions at court on 9 December 2024 the parties were able to agree that the weekly payments would be backdated to 5 August 2024 and, in addition, the sum to secure the applications necessary for the children's immigration status would be paid.
The judge said: “That position having been confirmed in the court order with a fixed date for when such payments would be made enabled the court, finally, to be in a position to make the adoption orders.”
Discussing the adoption applications, the judge observed that both the Annex A report and the Children's Guardian's report made “strong recommendations” for adoption orders to be made.
She said: “The evidence makes clear A is able to meet each of the children's welfare needs to a high standard despite the enormously difficult circumstances.
“I am satisfied that each child's welfare requires the consent of their birth father to be dispensed with. He has had no active involvement with the children throughout their lives and any involvement that he has had has caused them significant physical and emotional harm.”
Finally, criticising the local authority for the “significant” delay, the judge noted: “Although the issues regarding an Adoption Support Plan have finally been resolved it is of very great concern that it has taken twelve months, and that part of that delay was caused by a fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support.
“It was only through the tenacity and expertise of A's legal team and two letters before action that the situation now has been reached where agreement was possible. That additional significant delay and lack of certainty has been contrary to the welfare needs of these three vulnerable children.”
Making the adoption orders, Mrs Justice Theis concluded: “Having considered the evidence in this case and the updated adoption support plans, with the additions made at this hearing, I am satisfied that the lifelong welfare needs of each of these children can only be met by the court making the adoption orders.”
Lottie Winson
