Sending criminals to prison even for long periods is one thing. Permanently removing their children is on an altogether more serious scale of importance.
Sir Paul Coleridge (Coleridge, 2011)
The year 2000 saw publication of the Waterhouse Report which uncovered the systematic physical, sexual and emotional abuse of hundreds of children in North Wales care homes between 1974 and 1990 and identified major failings in the child protection system. Tony Blair, the Prime Minister, reacted by announcing a major review of adoption policy,
The whole purpose of this is to clear away the clutter of rules that stop children having a decent home. We have got to get some common sense back into the system. No matter how good a care home is, it isn’t as good as having a loving family (The Guardian, 2000).
In December a White Paper was published (Department of Health, 2000), leading to the Children and Adoption Act coming into force five years later. In addition to the new legislation Blair introduced substantial financial rewards to councils if they managed to place children from foster homes for adoption. The target was for a 50% increase on 1999-2000 figures by 2006 (Department of Health, 2002). The targets also aimed to speed up the adoption process once a decision was made. Meeting the targets would be generously rewarded. The unintended consequence was that social service teams, unable to find adoptive homes for older, more impaired children, resorted to taking new-born babies from their unwilling families in order to meet the targets. The number of babies under 1 year old placed for adoption rocketed by 123%, while the number of children over the age of 7 moved from fostering into adoptive homes actually fell. The number of children aged over 10 fell by 67%.
Where were these babies coming from? Not from the care homes which had an inexhaustible supply of abused and damaged children. Instead they were being taken from parents who had never been proved to have harmed their children. Because there was pressure to take children as babies, social services were coerced into making decisions early in a case without the necessary evidence. Some of the excuses for removing children look very weak indeed; claiming without evidence that parents are too stupid to look after their children adequately, or that mothers who have themselves been abused in the past will abuse their own children in the future. Babies and toddlers are easy to place because demand greatly exceeds supply and councils can more easily meet their targets.
Because a contested case can delay adoption for longer than two years (though rarely prevent it) there was pressure on councils to bypass the court procedure; the Government wanted to reduce the delay to a maximum of 6 months. This led to councils targeting vulnerable parents who had learning difficulties and who could not therefore instruct a solicitor or had to be represented by the ‘Official Solicitor’, a lawyer or paralegal who works for the state. In January 2008 a forced adoption case created considerable press interest because the judge, James Munby, had ordered the local authority in Nottingham to return the child on the grounds that his abduction just two hours after the birth had not lawfully been carried out. The council promptly obtained the prerequisite court order and re-captured the child; Nottingham had decided the fate of G’s baby even before he was born, incurring Munby’s condemnation,
There was no question of any medical justification for the intervention, let alone any medical emergency. G’s son was removed simply because of the ‘Birth Plan’ (Re G (R on the application of) v Nottingham City Council, 2008).
In 2006 Rachel Pullen’s daughter Laura (not her real name) was born 13 weeks prematurely with breathing problems and requiring operations to her bowel, eye, heart and throat. She was taken into care before she left hospital as her mother was judged by social services to be unfit to care for her. Rachel was considered – but by only one ‘expert’, employed by the local authority – to be insufficiently intelligent to instruct a lawyer and was represented by the Official Solicitor who could not represent her views to the court and, as in the case of Alessandra Pacchieri, had to follow what social services recommended; her real deficiency seems to have been her hostility towards social services and an alleged expression of racist views. Against Rachel’s wishes and without consulting her, Laura was placed for adoption. Once you are judged to ‘lack capacity’ there is no right to a second opinion and no legal aid available to challenge the finding.
By June 2009 ‘Laura’ (or Baby K as she was known), then three, had recovered fully and Nottingham County Council had found an adoptive family for her. Rachel was allowed to visit every two weeks prior to the adoption. Again she was told she lacked the intelligence to cope with her daughter’s medical needs and was not able to instruct her own lawyer; again the Official Solicitor ‘represented’ her, and again refused to go against the council’s wishes. An independent psychiatrist found Rachel had ‘good literacy and numeracy and her intellectual abilities appear to be within the normal range’. Rachel was backed by MP John Hemming to take her case to the European Court of Human Rights (Dolan, 2009); the case was heard in October 2012 (RP and Others v United Kingdom, 2012) and went against her. In an interview with ITN Rachel had reasonably observed, ‘They say I have no parenting skills; nobody’s born with parenting skills, parenting skills come gradually’. She argued that she should at least be given a chance to look after her child, and if she failed to look after her adequately, as she said the council wanted her to fail, then it would be reasonable to take the child away. The case exposes social services ignoring their statutory obligations to keep families together by supporting parents and their propensity to take children away without giving parents the opportunity to prove themselves and without gathering evidence of risk. The story of the outwardly articulate mother judged too stupid to care for her own child attracted considerable press attention, a sign of the public concern surrounding this issue, which was turning social workers from well-meaning professionals keen to protect vulnerable children into despised and feared pariahs.
Suitable children are advertised for adoption in the press, often while still subject to court proceedings, and yet their parents are forbidden by court secrecy to discuss these cases. They are also prevented from taking their cases to the Court of Appeal because of time limits and because the courts refuse to release transcripts of judgements (Leapman, 2007) and deny parents access to their court files (Burgess, 2009). Even if Rachel Pullen had won in Strasbourg she wouldn’t have got her child back.
Who benefits from this trade? A profitable business has grown up providing foster homes for children taken into the care system. Fostering is one of the few reliable ways to earn a living if you have no qualifications and want to work from home; between 30% and 40% of foster carers have no educational qualifications and can receive over £600 per week per child – much more than the £20 the child’s parents would get. For a severely disturbed child up to half a million a year can be paid out. Councils have offered foster parents free loft conversions worth up to £30,000 (Evening Standard, 2005). Fostering agencies charge local authorities £1,500 per week for finding foster homes.
Local authorities no longer get the huge rewards they once did, but it is still financially advantageous for them to get children adopted rather than spend money on supporting parents or on having the children fostered, and fostering in turn saves £100,000 per year for each child taken out of residential care. Foster Care Associates, the largest fostering agency in the UK, had a turnover in 2003 of £56 million; the social workers who acted as its directors paid themselves £285,000 each (Ibid.). By 2011 the group’s turnover had reached £138 million. Even more profitable is the lucrative adoption market always hungry for new children. This trade provides rich pickings for lawyers: each case costs an average of £70,000 in legal and court fees with some cases costing up to £500,000 including the local authority’s costs and the parents’ legal aid (Dyer C. , 2006); in 2008 lawyers’ average annual earnings from family legal aid work were £140,000 (Times on Line, 2008). Councils have their own preferred ‘expert witnesses’ who can be relied on to produce reports in favour of removing children and who typically charge £30,000 per report. Agencies can charge a £27,000 fee for finding adoptive parents; many adoption charities are little more than fronts for government and local government agencies; Barnado’s, for example, which turns over £234 million, is 78% state funded; National Children’s Home 88% (Seddon, 2007). Their boards are made up of senior social workers, local authority mandarins and family lawyers. The board and management of the British Association for Adoption and Fostering (BAAF) are dominated by local authority social workers; its chairman is none other than Anthony Douglas, chief executive of CAFCASS, and himself a former director of social services (and the BAAF president is a former family court judge).
CAFCASS is supposed to be strictly impartial, yet through his links with BAAF its chairman is linked at a policy and activity level with the sordid business of abducting children from their families. BAAF doesn’t simply wait to receive children; BAAF actively campaigns for more children to be taken – it supported the targets enthusiastically – and immediately comes to the defence of local authorities who are criticised for their adoption policies and conduct. In 2005, BAAF Chief Executive Felicity Collier wrote to every MP in response to a Daily Mail article on forced adoption; she denied there were financial incentives behind adoption but at the time this was untrue. The financial rewards introduced by Blair officially ceased in 2006, but the culture continued, and other financial incentives remained in place. In September 2007 the Minister for Communities and Local Government, John Healey, responded to a written question from Conservative MP Tim Loughton that 30 local authorities had met their Local Public Service Agreement targets on adoption and placement and had been rewarded. The total pay-out was over £18.5 million, and the highest payment was of £2,469,200 to Essex County Council (Hansard, 2007). In 2001 Kent Council had been awarded £21 million for meeting performance targets including those for adoption (Kent County Council, 2007).
The Children’s Minister Kevin Brennan was forced to write to the Times and Daily Mail in January 2008 claiming the targets had only applied to children already in care, and they had ended in 2006, the date they were supposed to be met. Neither statement was entirely honest, and both conflicted with an announcement quietly released just over a week earlier that the Labour Government was planning to scrap the targets that April (Leapman, 2008a). Hammersmith and Fulham Council admitted in April they had received £500,000 for meeting targets over the previous 3 years (Leapman, 2008b). Nearly all of the children were adopted compulsorily against their parents’ wishes; a spokesman justified this by saying the children were more likely to ‘achieve economic well-being’, but this is not a legitimate reason for taking children and we have already identified social workers’ enthusiasm for a little social engineering: just because you are better off than your neighbours does not entitle you to steal their children.
As late as 2010 allegations were still being made that councils received bonuses for meeting targets, and the charity Barnado’s was advocating setting new targets to boost falling adoption rates. Tim Loughton, briefly the Coalition Children’s Minister, rejected the demand, ‘It is the wrong way to go about things’ (Pemberton, 2010b). In February 2011 the Government launched new guidelines rejecting ‘political correctness’ and designed to increase levels of adoption by eliminating discrimination based on age or race; ironically new legislation with the aim of ending discrimination against homosexuals had forced the closure of all Roman Catholic adoption agencies, ensuring many children would remain in care. In July 2011 the Government unwisely appointed former chief executive of Barnardo’s, Martin Neary, as its ‘adoption tsar’. He promptly advocated more children to be taken into care, a return to the targets culture, league tables and the naming and shaming of local authorities which failed to comply; predictably there were further rises in the taking of very young children. Harriet Harman’s solicitor sister Sarah said,
Secrecy breeds bad practice, it breeds suspicion. It feeds parents’ sense of injustice when they have their children removed that they’re not able to talk about it. They’re not able to air their grievances. Children have been removed from their families unjustly. There’s no two ways about that (Metro, 2012).
Adoption continued to be a focus of the Coalition which introduced new guidance, new adoption scorecards, an adoption tsar, an adopters’ charter, an expert working group on redesigning adoption, an action plan for adoption, an adoption green paper and a House of Lords select committee inquiry into adoption. This led eventually to the Children and Families Bill which sought to increase the number of adoptions and reduce delay through use of a stick rather than Blair’s carrot. Tragically, the essential lesson had not been learnt that imposing arbitrary rules forces social workers to concentrate on cases which best enable them to comply with government dictat and avoid the more complex cases in which children may be at greater risk.
Even more alarming is the allegation that the threat of child removal is used as a tool of social control. Parents who question a doctor’s integrity, or challenge the authority of a police officer, or educate their children at home suddenly find the social services on the doorstep. People in positions of power find social services useful as an all-purpose threat to intimidate anyone who challenges them. It is a perfect tool for inducing docility. Some argue that the parents who suffer the worst systemic abuses do so because they have challenged or otherwise caused offence to an important member of the local power-structure (consider the case of Nevres Kemal in the next chapter). Suddenly they find their children have been placed on the ‘at risk’ register, for feeble reasons it is nevertheless impossible to challenge. Teenager Winona Varney described how she had been forcibly adopted at the age of 7, together with her younger sister, because they were deemed to be at risk of ‘emotional abuse’ (Lawrence, 2010). Aged 16 she had tracked down her mother through the internet and the family was reunited; Winona said,
They told us they loved us, but it was not an affectionate, cuddly relationship. We looked the part, with a three-bedroom semi-detached house and family holidays in Spain, but there were a lot of rows and tension. I felt more like a pet than their daughter.
Winona’s adoptive parents both worked for the local authority – as a housing manager and police clerical worker. Were the two sisters adopted to order? Would anyone else actually want these children if they knew where they had come from?
In 2003 Maureen Spalek, wife of a naval officer; took her eldest son to Alder Hey hospital with a broken leg from a hit-and-run accident. They were made to wait 28 hours before the hospital would treat him. When Maureen complained about the attitude of one of the doctors social workers were called in. When she complained about their hostility, matters escalated to the point where her three children were taken away; Maureen believed this was to meet the targets which then still applied. The ground given was that she had ‘problems working with professionals’; this is regarded by social workers as unacceptable behaviour, and the punishment is to reallocate the children. Sometimes this is expressed as parents being ‘unable to put the needs of their children over their own needs’; Rachel Pullen was accused using this formula. Entirely normal behaviour in the face of an immensely powerful and irrational bureaucracy is considered evidence of mental instability or deficiency. Within 6 weeks of being taken into care the children were placed for adoption; although they had been taken unlawfully from their grandmother, a judge ruled the adoption process had gone too far for it to be reversed. While in the care of Newcastle social services the children were abused. Maureen was threatened that if she went public with this manifest miscarriage of justice she would lose her house as well. She might even be sectioned.
The removal of all three children was based on a single report from Alder Hey hospital concerning the eldest; the threshold criteria were never met for the younger two. One child ended up living with the father; the two others were adopted. By a social worker from the same department that had taken them into care. Subsequently Maureen was arrested by 5 police officers for the crime of sending a birthday card to one of her children, she was handcuffed and thrown into a police cell for 24 hours. On release she had to pay £150 to recover her impounded car. Maureen was never accused of harming her children emotionally or physically, indeed it was agreed in court she was an ‘excellent mother’; social services merely made the standard prediction that she would be a potential risk of harm in the future.
Understandably, parents are reluctant to engage with this system, and will even flee abroad if they fear their children will be taken. In June 2009 John Hemming encouraged a couple to move to Ireland in order to keep their child (Alderson, 2009). An allegation had been made that their oldest child had been sexually abused; despite the lack of evidence, she was taken into care and adopted. The same thing happened to their second daughter. Hemming advised that their only hope of keeping their soon-to-be-born third child was to flee the country. They sold everything, bundled clothes into black bin liners and took the ferry from Fishguard to Rosslare. Within 24 hours of the child being born in County Wexford General hospital, she was taken into care, though Hemming claimed the couple stood a better chance of winning her back in the Irish courts. The father, a former serviceman, said,
I am very angry. I fought for my country but now I have been forced to leave it. We are not baby factories for these people just so they can get their quotas up.
Under family law in England, you are guilty until proven innocent – and you can never prove your innocence.
Whereas social services should be seen as supportive of parents and families, their behaviour has led to their being universally feared. Within social services the permanent removal of children is considered an option preferable to providing assistance to parents which will enable them to care for their children at home. The UK system would rather punish failing parents when what is required is a rapid-response, short-term intervention at a time of family crisis. For parents who genuinely cannot cope with raising a child and who need the additional help and support which social services are meant to provide the situation is more serious; some mothers conceal the birth of a child, so the child’s very existence is not registered. Many mothers drop off the social services’ radar at just the moment when they most need support, withdrawing children from school and barring the door to social workers. It is at this point that children are most vulnerable; indeed, it is not too far-fetched to say that infanticide is the natural consequence of a child protection system which chooses to remove children rather than support parenting.
The problem is exacerbated by the near collapse of the guardian system – thousands of children go through the care system without a guardian, or with a succession of ‘duty’ guardians under the Revised Private Law Programme – and by the loss of legal aid lawyers who will represent parents. Only between 0.1 and 0.2% of care applications are refused, while some courts approve 100% of applications. Allegations of judicial ‘rubber stamping’ are bolstered by the published judgements. These reveal how briefly judges and magistrates scrutinise cases before approving them, showing the scantest regard for the welfare checklist and dispensing with parents’ consent with extraordinary flippancy. Few of these judgements exceed a single page of A4. An extraordinary case in 2014, published under James Munby’s new rules on openness, revealed that local authorities were writing magistrates’ ‘Facts and Reasons’ reports for them, in exchange for having their applications approved (Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons), 2014). The ‘Facts and Reasons’ reports are supposed to be written by magistrates after the case in order to provide a rationale for the decision taken. Mrs Justice Pauffley said,
It is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible.
Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.
There were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.
Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right.
It should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.
Local authorities clearly do not support parents who need help caring for their children or try every alternative before opting for care: the system does not observe existing legislation or perform its role diligently. The need for judicial oversight was demonstrated by James Munby who’d found it necessary to clarify,
Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.
As I said during the course of the hearing, no baby, no child, can be removed simply ‘as the result of a decision taken by officials in some room’ (Re G (R on the application of) v Nottingham City Council, 2008).
In order to hasten the process, Clause 1 of the Children and Families Bill will remove the safeguard which obliges local authorities to consider placing children with their wider families; children will be placed on the adoption register before there have been any court proceedings and before a judge has approved the child for adoption. A child temporarily taken into care could be placed with potential adopters, making return to the parents less straightforward: by the time the parents find legal representation and the case comes to court, the child will have become ‘settled’ in its new family and courts will be unwilling to remove it. As under Labour, it will be easier to meet targets by taking babies than to find adopters for older children.
Not all judges are as scrupulous as Munby: if local authorities’ applications are rubber-stamped, what need is there for parents to be legally represented at all? This seems to have been Nicholas Wall’s thinking in the notorious case of P, C & S. The mother, P, had had a child from an earlier relationship taken into protective custody on the evidence of an ‘expert’ on Münchausen’s Syndrome by Proxy (MSbP) who had neither met nor interviewed her. When a daughter, S, was born to P and her new husband, C (who had written a thesis about women falsely accused of MSbP), the local authority, Rochdale, tipped off by P’s ex-husband, removed S and offered her for adoption. The freeing for adoption proceedings were to be held a week after the care proceedings; P, who had a valid legal aid certificate, asked for proceedings to be deferred to allow her to find legal representation but Wall declined, seemingly on the grounds that the decision was already made and representation would make no difference. He dismissed her claim that the stress of her situation made it hard for her to represent herself in extremely complex proceedings over a period of 20 days; the couple’s objection to adoption was unreasonable and Wall refused leave to appeal.
P and C complained to the European Court of Human Rights that they had not been sufficiently involved in the pre-birth decision-making process and had not had access to court in respect of the freeing proceedings, in breach of their Article 6 rights (P, C & S v the United Kingdom, 2002). The court agreed: the haste was ‘draconian’ given that S was already in foster care and P should have had access to legal assistance at both hearings; the adoption hearing could have been adjourned. They complained also that the freeing order was draconian and irreversible and the lack of provision for any future contact breached the Article 8 rights of parents and child to respect for their family life. They were unaware they could have applied for contact during the freeing proceedings, and the transcript of the care proceedings, essential for any lawyer acting for them, was not yet available. The court ruled that removal of S at birth was without justification and the procedural shortcomings breached Article 8. Wall went on to be appointed President of the Family Division.
P, C & S v the United Kingdom, 56547/00 (European Court of Human Rights July 16, 2002).
(2008, June 19). Retrieved from Times on Line.
Re G (R on the application of) v Nottingham City Council,  EWHC 152 (Admin) (High Court 2008).
RP and Others v United Kingdom, 38245/08  ECHR 1124 (European Court of Human Rights August 2012).
Alderson, A. (2009, June 6). British baby seized in Ireland after parents flee social workers over custody row. Sunday Telegraph.
Burgess, K. (2009, April 29). Family courts system accused of hiding evidence from parents. The Times.
Coleridge, P. (2011). Does Family Law Shape Society or Vice Versa? Westminster: Care.
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Department of Health. (2002). Improvement, Expansion and Reform: The Next Three Years (Priorities and Planning Framework 2003-2006).
Dolan, A. (2009, May 31). ‘They stole my little girl,’ says mother judged too stupid to care for her baby. Daily Mail.
Dyer, C. (2006, March 17). Council must pay £500,000 for wrongly taking girl into care. The Guardian.
Evening Standard. (2005, October 2). Firms cash in on shortage of foster homes. Evening Standard.
Hansard. (2007, September 3). Written Parliamentary answers.
Kent County Council. (2007, June 14). Memorandum submitted to Select Committee on Treasury.
Lawrence, J. (2010, September 3). ‘I was stolen from my mother’: The deeply disturbing truth about forced adoption. Daily Mail.
Leapman, B. (2007, August 8). Courts won’t reveal rulings in adoption cases. Sunday Telegraph.
Leapman, B. (2008a, January 20). Labour’s adoption targets to be scrapped. Sunday Telegraph.
Leapman, B. (2008b, April 13). Cash prize for council that hit adoption targets. Daily Telegraph.
Metro. (2012, April). Targets claim over forced adoptions. Retrieved from Metro.
Pemberton, C. (2010b, November 1). Minister identifies too much “political correctness” in adoptions. Community Care.
Seddon, N. (2007). Who Cares? Civitas.
The Guardian. (2000, December 21). Blair: ‘Why adoption is close to my heart’. The Guardian.