England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT CHELMSFORD

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF K

CM105/13

Date 12.12.2014

Before HHJ Lynn Roberts 

Between :

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Miss McMullan for the Adopters

Instructed by Ridley and Hall Huddersfield

Miss Hodkinson for the Respondent

Hearing date: 25.11.2014

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JUDGMENT

1.      On 25^th November 2014 I heard submissions in relation to the costs incurred by the Prospective Adopters in their adoption of K. There was insufficient time for me to prepare and deliver judgment and I therefore decided to reserve my decision. 

2.       By way of context, in Essex it is the usual practice for Proposed Adopters to play no active part in the legal aspect of the adoption process, if the child has been placed pursuant to a placement order. Other than the application form, the Proposed Adopters do not complete any other documentation and do not attend any hearings, in a routine case. Now that it is more common for there to be contested hearings at the permission stage, sometimes Proposed Adopters do submit evidence for that hearing, but it is still very unusual. Indeed Miss Hodkinson told me during this hearing that Essex does not now fund Proposed Adopters to be represented at the permission hearing (although they did in this case) and Essex will argue the case alone.   I have found this unusual since I came to sit in Essex, as in my previous court in London, the PRFD, now the CFC,   adopters did play a full part in the process and Local Authorities usually funded their legal representation. I hope that the Local Authority will review this policy for the future so that adopters can be funded if they wish to be represented at the permission stage or in relation to the support plan.

3.      Further by way of context, K was placed with the Prospective Adopters on 4.8.2011 at the age of 22 months. He is now 5 and he has a wide range of needs and he is a very challenging child to parent. It is accepted by all that at the time he was placed the extent of his difficulties had not been understood. As a result, the Proposed Adopters found themselves parenting a child with an array of problems, and Essex had not identified either the difficulties or the support which would be needed at an early stage. On the day of the hearing of the costs application, I also made a final Adoption Order. Despite the challenges, the Proposed Adopters have provided the care which this little boy needs. He is very much part of their family and they are devoted to him and to giving him the best possible start in life.

4.      The Proposed Adopters filed their application to adopt K on 31.7.2013. The expectation of Essex was that this application was made by this time. From the point of view of the Proposed Adopters, they had been raising issues about the level of support needed, especially in view of the adoptive mother’s health deteriorating, for several months.  In September 2013 the Proposed Adopters instructed their current solicitors because the birth father had indicated an intention to seek to oppose the adoption. At the hearing on 8.11.2013 the Proposed Adopters were represented as the Local Authority had agreed to fund their representation in the light of the position of the birth father, and indeed by this time, the birth mother. The Court ordered, inter alia, that the Local Authority “shall file and serve, in accordance with Annex A and the Adoption Support Services Regulations 2005, a report and assessment, to include the extent of the child’s complex needs and the services which are to be offered to the Prospective Adopters by 13.1.2014.”

5.      I did not conduct that hearing but I suspect that that direction arose because by that stage the Proposed Adopters’ solicitors had started writing to the legal department of the Respondent asking for the assessment which had led to the support plan which had been prepared. The Respondent made clear in the course of that correspondence that they would not fund the Proposed Adopters’ costs in this respect and that they expected the Proposed Adopters to sort out the issues with the social workers.

6.      Instead of filing and serving the report and assessment and services to be provided, the Respondent served the Proposed Adopters shortly after the hearing on 8.11.13 with a support plan which was accompanied with a letter saying: “We do not view it as a draft…” This is odd as the support plan predated the Order of 8.11.2013 which must mean that the Order and its significance were not considered.   

7.      At the hearing on 20.12.2103 the Court repeated the Order made on 8.11.2013 but expanded it by adding “this shall include consideration of the children with disability assessment and the educational statementing process”; further Orders were made regarding obtaining further medical evidence about K.

8.      The Local Authority was to file and serve the medical evidence by the end of January 2014 and the other evidence by 13^th February 2014. However the Local Authority were not able to meet these deadlines and the next hearing was therefore delayed.  The Court recognised the importance of obtaining all the necessary information before the adoption support plan could be prepared and therefore the hearing was put off until June 2014. The Local Authority then decided that an ISW needed to prepare an assessment leading to a support plan but were unwilling for it to become part of the Court process.  The Court ordered that the report be prepared and disclosed to the Proposed Adopters when this matter was next heard on 4.7.2014. The Court ordered that the report be disclosed by 31.7.14 and the support plan by 15.8.14.   

9.      There then followed an unfortunate email on 19.8.2014 from the Local Authority which said that the Local Authority was not in a position to file the report and went on to imply that Barnardos who were to do the report may not in fact be able to do the work. This was a very unfortunately worded email as by that time it appears that the report was in existence but it needed further work. I accept that the Local Authority did not mean to mislead but it certainly led to confusion.   The solicitors chased the report and it was finally served on them in mid September with a copy of the new support plan. On 30.9.2014 the solicitors wrote about the Local Authority meeting the Proposed Adopters costs, but this was not agreed. On 5.11.14 the Local Authority filed yet another support plan. This support plan did not in fact say what the social worker had indicated it would say. The solicitors chased this up too and yet another support plan emerged on 14.11.2014 which was acceptable to the Proposed Adopters with a couple of minor amendments.

10.  The Proposed Adopters argue that without expert legal advice and representation they would not have achieved the support plan which they now have and which is vital for K to be able to be cared for as he needs and within their family. It is worth noting that the final support plan is very different from the original one and that it recognises the extent of K’s difficulties and the difference from what the Proposed Adopters were expecting, the great devotion and skill of the Proposed Adopters, and the extent of the needs of the family for support. They applied for an Order that the Local Authority pay their costs on 18.11.14.  They argue that the Local Authority were not fulfilling their statutory duties under the ACA 2002 in terms of assessing what support was needed and in making a plan to provide that support. They argue that the Local Authority repeatedly failed to abide by what the Court had ordered and were unreasonable in providing support plans without assessments and by prevaricating over the provision of the Barnardos report.    They also argue that the Proposed Adopters have not got the money to pay legal fees as they need to use their money to maintain themselves and K, and that by adopting him they are saving the Local Authority huge amounts of money as it is most unlikely that other adopters could be found for him.

11.  The Local Authority argue that the court should not award costs: they say that costs were not sought in the application and in any event, the support plan is not something upon which the court has jurisdiction. They do not think that they have been unreasonable and that the assessments which led to the support plan did exist even if they were not committed to writing. They point to the fact that they have been generous to this family in terms of funding throughout and in particular in the final support plan.

12.  I do have power to order the Local Authority to pay the Adopters’ costs pursuant to the FPR 44.2.  It would be unusual to do so but this is an unusual situation.   I do not think that the fact that the Proposed Adopters did not ask for costs in their application is a good point as it would not normally be envisaged that costs would arise. The Local Authority have been aware that the Proposed Adopters have instructed solicitors for the last year of the litigation, and although they have said they are not prepared to fund this, that does not mean that the Court cannot order them to do so. Similarly it is not a good point in my judgment to say that this court has no jurisdiction over the support plan and therefore should not award costs in relation to it; the court has jurisdiction over the making of the Adoption Order and clearly was not going to make such an Order unless satisfied that the support plan was appropriate.

13.  I said in the hearing that there was nothing reprehensible in the actions of the Local Authority but I do consider that they have been unreasonable throughout.     I also am strongly of the view that if the Proposed Adopters had not secured expert legal advice one of two things would have happened: either the placement would have broken down because the appropriate support was not in place, or the adoption would have gone ahead but without the support which all now agree is necessary, which would have meant that K and his parents would continue to struggle.   It appears to me that the Local Authority were slow to recognise the extent of this child’s difficulties,  the demands his care was making on the Proposed Adopters, the necessity for there to be comprehensive assessments of all of this, and to think creatively as to how this adoption could be made a success for this family. There has been great delay throughout by the Local Authority and a failure to focus and to accept that there needed to be a full assessment leading to a plan which was not a standard plan with add-ons, but one designed particularly for this child and this family.  

14.   In such circumstances, I shall order the Local Authority to pay towards the costs of the Proposed Adopters. The total of the costs sought are £17,380.62 including VAT. I do not agree with the Local Authority that the solicitors should be confined to the legal aid rate. I do agree with the Local Authority that the costs are higher than necessary. Looking at this in the round, I shall order that the Local Authority pay £14,000.00 towards the costs of the Proposed Adopters. This reflects my judgment that the Proposed Adopters were very successful in securing the right support plan to make the adoption order an order I could make, that the Local Authority were unreasonable and delayed and did not comply with the Orders of the Court, and that the Local Authority failed in my view to address the particular needs of this child until receipt of the report from Barnardos.