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When enough is enough – Court of Appeal Decides Against International Placement

Avaia Williams (Pupil) and Deborah Shield review the Court of Appeal’s reasoning in the case of <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/214" target="_blank" rel="noreferrer noopener">Re M (A Child) (Placement Order) [2025] EWCA Civ 214</a>. A decision concerning the placement options for a young boy, M, where the court was asked to grapple with placing the child for adoption or delaying proceedings and determination to support a possible family placement abroad.  The judgment, given by Lady Justice King, is infused with the concept that delay is prejudicial to a child, and that there comes a point within proceedings where ‘enough is enough’ and the nettle must be grasped.  Background  M was born during existing care proceedings relating to the parents other children. M was initially placed with the mother under an Interim Care Order, however, following breaches of the safety plan, M was placed into foster care.  The mother put forward M’s aunt and uncle, who lived in Pakistan, as alternative carers. These alternative carers were supported by the Local Authority until August 2024, at which point, the Local Authority moved to a plan of adoption within the UK.  By the time of the final hearing in October, a positive Children and Families Across Boarders (“CFAB”) assessment had been completed of the aunt and uncle. This assessment raised some concerns and uncertainties, such as the level of education that would be available to M and the impact on the family unit in Pakistan given the uncle may need to work extended hours and abroad. That being said, the assessment recommended the aunt and uncle as:  “suitable to be considered to care for the children (sic) if they are provided with financial support.”   Given the positive CFAB assessment, the aunt and uncle sought an adjournment at the final hearing to allow a full assessment of them to be carried out within the UK (as would be required to affect such a placement abroad). This was refused by the court, and a Placement Order was made. The judge’s reasoning was encapsulated by the placement with the aunt and uncle being “fraught with uncertainties”, at [41] the Court of Appeal quoted the judges reasoning that:  “…there is sadly no clear and confirmed timescale for the assessment to be completed, and no guarantee that it will be positive (though I accept, there are grounds for optimism that it would be based on the CFAB assessment). [M] has no existing relationship with the Aunt and Uncle (although they have seen him over video calls in the first few weeks of his life, he does not know them, and they speak a different language  I have balanced these very real and in my judgment legitimate concerns with the potential positives in the court sanctioning delay for assessment to take place, because, if positive, it would enable [M] to be placed with an extended family member, in a cultural and religious match, with the possibility for ongoing relationship (even if limited) with his parents and other family members.”  Grounds of Appeal  The aunt and uncle appealed on five grounds, that the judge was wrong to:  “i) Accept that Accept that a plan to place M with his aunt and uncle was “fraught with uncertainties”.  ii) Conclude that it would be akin to 6–12 months before a successful placement could be achieved if an assessment of the aunt and uncle were positive.  iii) Conclude that there was a real possibility that the assessment would be negative.   iv) Conclude that an adjournment was not within M’s reasonable timescales for achieving a permanent placement absent direct evidence as to timescales to place M for adoption.  v) Fail to consider if a “robust and focused timescale” could have been imposed to lead to an expeditious resolution of proceedings following further assessment of the aunt and uncle.”  In submissions, Teertha Gupta KC, focused on the third and fifth grounds of appeal, having conceded there were clear uncertainties with the plan and that the assessment for 6-12 months was something the judge could have reasonably assessed.  Ground iii  With respect to ground iii, the Court stated at [53]  “That there was a real possibility that the assessment might fail was in my judgment an inevitable consequence of the uncertainty inherent in the whole complicated plan; for example, it may simply not have been viable because the funding was no longer available from the cash-poor local authority or the applications for visas may be refused. M may himself have found the introduction to his aunt and uncle with the language barrier just too difficult and, as had been identified by Ms Rafiq, there were issues with schools and the home conditions. These were all potential stumbling blocks. For my part I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great. Should the matter have been adjourned then, providing they managed to obtain visas, the family would have relocated to a strange country for an unspecified period of time for assessment and, if successful, the uncle would then return to Pakistan with the two older (but by no means grown up) children. Once home they would have to manage without their primary carer while their father worked punishingly long hours, potentially for many months, whilst court proceedings took their course in both the UK and Pakistan, proceedings which would be necessary in order to provide essential protection for M’s position in Pakistan.”  It was clear that the judge did consider the positives within the CFAB assessment, notably the cultural match and a family placement, however, drawing on Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, the Court reaffirmed at [55] that:  “As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family.”  On ground iii, the court concluded at [56] that:  “Ultimately the judge concluded that M’s welfare demanded that he be placed for adoption and that when she performed a proportionality cross check she said she was “satisfied that, despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do”.”  Ground v  As to ground v, it was submitted by Teertha Gupta KC, that, given the delay already in place, there was no requirement for the court to now “bring down the guillotine” and that an extension should be granted under s.32(5) Children Act 1989. The Court relied on Sir James Munby’s assessment in Re S (a child) (Interim Care Order: Residential Assessment) [2015] 1 WLR 925, where the then President held at [34] of that judgment that:  “I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is "necessary" to enable the court to resolve the proceedings "justly". Only the imperative demands of justice – fair process – or of the child's welfare will suffice…”  Further, the Court drew on the judgment of Peter Jackson LJ in Re S-L (Children) [2019] EWCA Civ 1571, where the Court of Appeal in that case, at [12], decided that:  “In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay […] public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.”  The Court considered the crucial age at which M now was. M was entering critical phases for developing his attachments.  On ground v, the court concluded at [64] that:  “…the judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgment she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.”  Comment  Tt has been 12 years since the Supreme Court gave the landmark ruling in Re B (A Child) [2013] UKSC 33, and the Court of Appeal gave guidance in Re B-S (Children) [2013] EWCA Civ 1146. It was hoped that the Court of Appeal may have taken this opportunity to provide further guidance on the concept of “nothing else will do” given this nebulous concept has caused much debate and concern for practitioners across the board.  The concept of “nothing else will do” creates a paradox when paired with a clear statutory time-limit of 26-weeks for resolving children proceedings. How can it be said, on the purely factual basis in this case, and countless others, that nothing else will do for this child. Whilst the judge was evidently right to conclude that the assessment and placement with the aunt and uncle was an uncertain placement, it is a comment which can be applied to every placement that results from care proceedings, whether adoption or otherwise.  What is clear, is that this child had a clear opportunity to be placed within his family unit. Notwithstanding the decision of the Court of Appeal, and previous decisions, that there is no ‘right’ to such a family placement, it is incontestable that a family placement has inherent benefits and is the preferred outcome where that placement is safe (were this not the case, Local Authorities would have no duty to assess connected carers). So, whilst the assessment of the aunt and uncle was not clear, it was optimistic and was a viable way forward. As such, on a literal interpretation, it could not be said that “nothing else will do” but placing M for adoption.  It is clear that “nothing else will do” comes with several caveats such that the actual rule, or at least how it is applied in courts, appears to be more akin to “nothing else will reasonably or realistically do, given the welfare needs of the child”. As the Court of Appeal in Re M have made clear, delay, especially where 26-weeks has been surpassed, will clearly require that any alternative plan be more and more realistic and more and  more reasonable than it otherwise may have to be at the start of proceedings (this being encapsulated by the Local Authorities approach here).  What can be learned from this case, is the need for Local Authorities, and those representing parents, to be proactive in identifying and assessing potential kinship carers at the earliest possible stage of proceedings. ‘Front-loading’ these assessments can help avoid the late emergence of an overseas relative or other connected person, which often places the court in the difficult position of choosing between exploring a potentially appropriate kinship placement and meeting strict statutory deadlines. By initiating thorough kinship assessments at the outset, local authorities not only ensure transparency and fairness but also mitigate the risk of children lingering in uncertain temporary arrangements. From the parental perspective, practitioners should advise parents on the importance of promptly disclosing potential family carers and providing all necessary details as soon as possible, thus offering a more realistic chance of success for kinship placements if they are viable.  A clear problem in practice is the misunderstanding of twin tracking by a) the parents; and b) the prospective carers; it must be made abundantly clear to those involved in proceedings, that suggesting such connected carers in no way takes away from the assessment of parents or the court dealing with proceedings.  Local authorities and practitioners acting for parents must collaborate to address matters such as visa applications, relocation logistics, funding arrangements, and compliance with both UK and foreign legal systems at an early stage. Where an international assessment is a serious possibility, forward planning, including formal engagement with international bodies like CFAB and seeking specialist advice, should form part of the initial case strategy, ensuring clarity around timelines, financial support, and the child’s specific educational or medical needs if placed overseas. It appears that, in such cases, the recommendations made by the Public Law Working Group in respect of international adoption may offer valuable steering.  Deborah Shield, led by Teertha Gupta KC, acted for the aunt and uncle in the Court of Appeal.

Deborah Shield appears in Court of Appeal Case Deciding Against International Placement

Deborah Shield appeared in Re M (A Child) (Placement Order) [2025] EWCA Civ 214.  The case concerned the placement options for a young boy, M, where the court was asked to grapple with placing the child for adoption or delaying proceedings and determination to support a possible family placement abroad.  Deborah Shield, led by Teertha Gupta KC, acted for the aunt and uncle in the Court of Appeal.  For more on this matter, please read Deborah Shield and Avaia Williams' review of the case, <a href="https://www.parklaneplowden.co.uk/when-enough-is-enough-court-of-appeal-decides-against-international-placement/" target="_blank" rel="noreferrer noopener">here</a>.

Neurodiversity and the Family Courts – New Guidance Seeks to Bridge the Gap

Avaia Williams and Chloe Branton provide an overview and analysis of the new guidance issued by the Family Justice Council on neurodivergence within the family courts.  Introduction  Neurodivergence is a broad term, with the phrase considered to be coined by the sociologist Judy Singer. It commonly refers to people who are diagnosed or present with ADHD, Autistic Spectrum Conditions, and neurodevelopmental conditions such as Dyspraxia, Dyscalculia and Dyslexia. However, the umbrella remains undefined by law, as such the term can include wider, and potentially unexpected, conditions and diagnoses including intellectual disabilities and mental health conditions.  The judiciary, via the Equal Treatment Bench Book, still places neurodiversity under the broad umbrella of ‘mental disability’. Put simply, neurodiversity refers to the different ways a person’s brain processes, retains, and uses information compared to most of society.  Vital guidance has finally been issued on how neurodiversity and the Family Justice System interact, or should interact. In January, the Family Justice Council published guidance on neurodiversity within the family justice system for practitioners, hopefully adding to the sea change currently taking place in family law and moving towards a more understanding approach to many who come into contact with the family courts.  Neurodiversity and What It Means  Neurodiversity acknowledges the natural range of differences in how people’s brains work. Historically, these conditions have often been misunderstood or regarded solely as disorders needing a “cure.” However, there is a growing recognition that neurodivergent individuals simply process and respond to the world differently, and that there is no single, correct way for a brain to function. Neurodiversity recognises cognitive differences between how people think, learn and behave.  They often bring particular strengths (such as attention to detail, creativity, principled thinking) as well as challenges (including difficulty with social interaction, concentration, sequencing information, or sensory overload).  Roughly 15% of the population is thought to be neurodivergent, though accurate figures are complicated by underdiagnosis, stigma and the broad umbrella of neurodiversity Many neurodivergent people, particularly those in minority ethnic groups and older adults, may struggle to obtain a formal diagnosis, or where they do, may not wish to disclose it. In particular, autistic women and girls and those from minority ethnic backgrounds are considered to be underdiagnosed due to outdated stereotypes and diagnostic criteria.  In the context of family proceedings, recognising neurodiversity is important not only for ensuring equitable treatment and fair access to justice, but also for promoting better outcomes for children and families. Unmet needs, whether relating to communication, sensory sensitivities, or comprehension, can negatively impact how parties and witnesses engage with proceedings, risking injustice and procedural unfairness.  Neurodiversity parents in particular can face challenges in the way they are assessed by professionals and real care and attention is needed to ensure fair treatment and assessment. In addition, neurodiverse conditions can be co-morbid (or co-occurring) presenting different challenges for the individual as the support they would benefit from may be different to those who only have 1 of those conditions.    In his foreword to the guidance, the President of the Family Division, a Chair of the Family Justice Council, Sir Andrew McFarlane, notes that:  “The universally applicable principle upon which the guidance sits, is that understanding an individual’s needs leads to better participation, and more effective justice. This principle encourages a system that, with relatively light adjustments, can improve participation and outcomes for children and families.  I encourage practitioners working within the Family Justice System to read the guidance carefully and to consider how they can adopt best practice.”  Breakdown of the Guidance  The recent guidance is built upon the principle that understanding an individual’s needs leads to better participation and more effective justice. It highlights several core areas:  Recognising Neurodivergence  Beginning with the beginning, the guidance gives an overview to terminology, and why this is important, outlining terms such as “neurotypical” (the ‘neuro majority’) and “neurodivergent” (the ‘neuro minority’) and underscores that each individual will have a unique profile of strengths and needs. Helpfully, the guidance provides a table of limitations and strengths which may be experienced by those with specific conditions, this includes things like communication difficulties for those with autism and strong verbal skills for those with dyslexia. This table will be particularly helpful for those who are new to the concept of neurodiversity, and will be a useful tool for practitioners.  Of particular note, the guidance gives an overview of ‘masking’; many neurodivergent individuals develop coping strategies to hide their traits and to ‘fit in’, particularly in stressful settings like courts. This can be exhausting and may lead professionals to underestimate or overlook support needs. The guidance describes masking as:  “…when someone uses strategies to make signs of their neurodivergence less obvious to other people. ‘Masking’ can often be a difficult and exhausting process. With or without ‘masking’, neurodivergence is often not obvious from the outside.”  Whilst the guidance is in broad terms, it is important to note that, neurodivergence is specific to each individual, as the guidance notes:  “Each neurodivergent person will have their own unique profile and support needs with a wide range of presentations. Unhelpful stereotypes and inaccurate assumptions may compound problems in identifying neurodivergence, especially people in minority ethnic groups, women, and older people.”  Why It Matters in Family Proceedings  While data on the topic is quite limited, there is strong evidence that neurodivergent people are overrepresented among court users. Underdiagnosis (especially among women and minority ethnic groups) further complicates the picture. The guidance suggests that a failure to account for neurodivergence within family justice will impact children and families, notably in two key ways:  <ol class="wp-block-list"> <li>In assessments, whether undertaken pre-proceedings or during proceedings, or even after in some cases (the clear consequence of failing to consider neurodivergence in assessments, such as parenting assessments, being that the conclusions or analysis may be inherently flawed). </li>  <li>As barriers to effective participation, thereby restricting justice and access to a fair trial (simply put, in the same way we put in participation measures for vulnerable witnesses to ensure they best engage, a failure to account for any measures that may support neurodivergent people naturally results in them not best engaging in proceedings).</li> </ol>  The guidance references Articles 6 (right to a fair trial) and 8 (the right to respect for private and family life) of the European Convention, plus Article 12 of the UN Convention on the Rights of the Child (UNCRC) which concerns respecting the views of the child, recognising each child has the right to express their views, feelings and wishes. These rights underscore the requirement that all parties and children can participate meaningfully, and demonstrates the risk of not considering the impact of any neurodivergence. The guidance states:  “…neurodivergent adults or children may not have the benefit of a full understanding of their functioning. This underlines the importance of practitioners being aware of neurodivergence and how it affects individuals, especially children. That awareness is vital when considering if the parenting of a child meets the ‘good enough’ standard as well as what support families might need in providing a particular child with ‘good enough’ parenting.”  The scope of the guidance is aimed at addressing barriers to participation and ensure fair treatment. D and E (Parent with Autism) [2020] EWFC B18 set out the importance of recognising the needs of neurodivergent participants in the family courts, noting at [148]:  “That no parent must be precluded from being able to parent effectively on account of a disability is a bedrock principle of family law. The extensive specialist expert evidence in this case reaffirms the importance of recognising that parents with autism are as individual as any other parent. There is a risk that professionals may apply a set of criteria or expectations in relation to parents in light of a diagnosis of autism without fully exploring that parent's strengths and weaknesses. It is also important that a parent does not begin to explain or justify any difficulties in their parenting purely because of a diagnosis of autism. It is equally, if not more important, for professionals working with parents with autism to be alert to and take account of the parent's individual needs when working with them, bearing in mind at all times the well-established principle that intervention by a Local Authority in a family may be appropriate but that the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. The Court's assessment of a parent's ability to discharge their responsibilities towards the child must always take into account the assistance and support which the authorities can offer, tailored to that parent's individual needs. Those needs must be assessed carefully, by skilled professionals, specific to that parent, without applying generalised criteria or expectations.”  Key Research and Themes  The guidance compiles emerging research showing:  <ul class="wp-block-list"> <li>Stigma and stereotypes often lead to misunderstandings of behaviours or communication styles in court.</li>  <li>Communication differences (such as a preference for direct, literal language or a need for extra processing time) can be mistaken for evasiveness.</li>  <li>Anxiety and stress are heightened for neurodivergent people, risking “shut down” or “meltdown” responses if proceedings are not adapted.</li>  <li>Invisible disabilities, including neurodivergence, pose challenges in ensuring recognition and appropriate support, especially if no formal diagnosis exists.</li> </ul>  Whilst there is little research in this area (though much is underway), the guidance is clear that:  “Reframing the narrative around neurodivergent people - from disordered to different and equally valid ways of experiencing the world - is an important element of much of the available research.”  Research into legal professionals’ knowledge of autistic adults in the Family Justice System shows that there is a lack of confidence in working with such adults. Specific training and experience in working with those with autism can increase this confidence and ensure greater access to justice. Whilst it is not established this is the case for other types of neurodivergence, it is difficult to see why this would not be the case.  The themes that are apparent are that neurodiverse people find it more challenging to engage in proceedings. Including processing information, responding to questions, recalling information, participating in the normal course of a hearing and understanding outcomes. Reminding advocates of what was said in R v Lubemba; R v JP [2014] EWCA Crim 2064:  “Advocates must adapt to the witness, not the other way round.”  Best Practice in Identifying and Meeting Needs  The guidance notes that, having a framework for thinking about, understanding, and responding would be useful. A framework, developed for autism but which has useful applications across neurodivergence, called SPELL is offered as a valid approach:  <ul class="wp-block-list"> <li>Structure, reducing anxiety and removing ambiguity</li>  <li>Positive attitudes, clear communication and respectful narratives, playing to the client’s strengths</li>  <li>Empathy, understanding the person’s experiences from their own perspective</li>  <li>Low arousal, ensuring sensitivities to sensory needs and avoiding confrontation</li>  <li>Links, consistency and connection including the person in decisions</li> </ul>  There is a need for early identification, the guidance states:  “In every case, at the earliest stage, thought should be given to whether someone might be neurodivergent. If there is an existing diagnosis, this should be accessed (if the individual concerned agrees to this). If there is an existing diagnosis further information may also be required (which can include expert assessment when necessary) in order to understand that person’s needs, strengths and the barriers which they might face.  If there is no existing diagnosis the first step for a practitioner is undertaking the exercise described below in circumstances where neurodivergence may present.”  The guidance suggests questions which could be asked that, whilst do not form screening or any diagnosis, can be helpful in advocates identifying if there may be any vulnerabilities with respect to neurodivergence.  Overcoming Barriers  It is important to understand the barriers that the person may face, this includes barriers away from court or whilst at court but outside of giving evidence. The FJC advise that a list is prepared which can be kept under review, and also notes that, it is important to  know when external assessment may be required.  Once barriers have been identified, a ‘one size fits all’ approach must be avoided. Even where there is a clear diagnosis, the individual needs should be what is focused on, not the label. Judges at Milton Keynes have introduced participation directions that are individual needs led where, unless a very good reason is identified not to, the adjustment is allowed.  The most commonly required types of adjustments are those to a) communication; b) the environment; and c) the structure and timing of the process. The guidance provides a detailed overview of some example adjustments to each of these area such as:  Communication – written communication over verbal, formulating questions in a way that considers literal interpretation, building in strategies to check understanding, and avoiding abstract language.  Environment – removing distracting objects, adjusting lighting where possible, using fidget or comfort toys, and providing a familiarisation visit.  Structure – giving evidence at a particular time of day, ensuring regular breaks, sticking to any agreed timetable, and ensuring clarity about what will happen and when.  “Many people involved in the Family Justice System will already be aware of some of the more common adjustments when a vulnerable party is giving evidence […] But often more specific and creative adjustments can be invaluable for neurodivergent people. A good example of this is seen in the case of C (Children: Welfare) (No.2) [2020] EWFC B36, where a unique procedure was devised with the help of an intermediary to enable a party to type their answers when giving evidence.”  Analysis and Opinion  The new FJC guidance represents an important step forward. It brings together existing research and best practices in a way that is practical and digestible to court users. Crucially, it foregrounds how relatively simple modifications (shorter sentences, scheduled breaks, sensory-friendly rooms) can transform the experiences of, and importantly outcomes for, neurodivergent people and their families.  However, while the guidance effectively signals that neurodivergent needs must be recognised, and provides a grounded way to do this, its impact is going to hinge on consistent adoption by all court users. Training and awareness, across all levels of the Family Justice System, including judges, clerks, security staff, advocates and intermediaries, remain vital. Courts and practitioners should be prepared to adapt to each individual, rather than expecting the individual to adapt to the existing system unassisted.  As best practice, advocates should consider the existing advocates’ toolkits and adapt them appropriately to suit each witness when providing oral evidence. Where an intermediary or other expert report is available this should be considered at each hearing and alongside the particular toolkits. Advocates must, however, be cautious to not adopt a black and white approach to working with or interacting with neurodiverse court users.  Why It Matters for Participants in the Family Court  Family proceedings are often a source of considerable anxiety and pressure for participants who are not neurodiverse. For those who are neurodiverse, those emotions can be even more heightened. For families and children navigating some of the most sensitive and stressful proceedings of their lives, meeting neurodivergent needs is more than a courtesy; it is a legal and ethical imperative, aimed at achieving the interests of justice and complying with the rule of law.  Inadequate adaptations and adjustments can result in misunderstandings of communication or behaviour, potentially leading to adverse credibility findings and unfair judgments. This can further increase already heightened anxiety and distress, in turn impeding effective participation and possibly resulting in additional trauma for those already in a vulnerable state.  When properly implemented, the adjustments set out in the guidance not only protect rights but also enhance the quality of the evidence and the fairness of outcomes, producing a process that is truly just for all.  Why It Matters More Widely  Neurodiversity is still too often overlooked or misunderstood, and the new guidance aims to encourage a broader cultural shift in attitudes and practices. By raising awareness, it helps to destigmatise neurodivergence and fosters more open conversations about different communication styles and support needs. This heightened understanding paves the way for inclusive approaches in the courtroom, so that both court users and legal professionals benefit from an environment where diverse cognitive profiles are not only recognised but also valued and accommodated.  Crucially, this emphasis on inclusivity can drive meaningful systemic change across the board. When practitioners collaborate on consistent strategies for support, people who come before the courts, particularly those with invisible conditions, are more likely to receive the adaptations they need. Such joined-up thinking leads to fairer, more accurate fact-finding processes and reduces the risk of misinterpretation or undue stress for neurodivergent participants.  Why it Matters for Judges and Lawyers  Judges play a lead role in shaping courtroom culture and overseeing how legal obligations are carried out. By actively engaging with the guidance, they can formalise measures such as ground rules hearings and tailored instructions to counsel that specifically cater to neurodivergent needs. In this way, judicial leadership signals to practitioners that effective adjustments are critical to achieving just outcomes. It also helps avoid common pitfalls, such as misreading stimming behaviour or literal communication styles, which can lead to misunderstandings, appeals, and ultimately a loss of confidence in the justice system.  Barristers and solicitors who thoroughly understand and apply the guidance are better placed to represent their clients empathetically and accurately, ensuring that instructions are taken in ways that are accessible. By identifying potential vulnerabilities early, practitioners can avoid wasted hearings or adjournments caused by unmet needs, thus enhancing both efficiency and fairness. Alongside this improved case management, the profession itself stands to gain from a commitment to inclusivity; many lawyers, court staff, and other professionals are themselves neurodivergent and may find traditional legal settings challenging. Greater awareness and adjustments can create a more supportive workplace culture and encourage greater diversity within the profession’s ranks.  Conclusions  This new guidance offers an essential framework for practitioners who seek to ensure that all court users, especially those who are neurodivergent, are properly understood and fully supported. It emphasises that failure to recognise neurodiversity can have profound consequences, not only for the rights and wellbeing of parents, children, and witnesses but also for the fair administration of justice. By highlighting the experiences and strengths of neurodivergent people, the guidance underscores that reasonable adjustments (such as tailored communication methods, a more sensory-friendly environment, and flexible structures for giving evidence) can be both straightforward to implement and transformative in outcome.  Ultimately, the practical impact of this guidance will depend on how widely and consistently it is adopted. Judges, legal professionals, and all those involved in the family justice process have a collective duty to embed these principles in daily practice. If embraced wholeheartedly, they can open the door to a more inclusive system that serves the needs of every participant. This is vital not only to uphold fundamental legal standards – such as the right to a fair trial – but also to foster confidence in the Family Court as an institution that genuinely responds to the diversity of those it serves. By doing so, we take a significant step toward ensuring that neurodivergent individuals, along with their families, experience a process that is empathetic, equitable, and truly just.  In his foreword to the guidance, the President of the Family Division (and Chair of the Family Justice Council) Sir Andrew McFarlane confirmed that guidance for the Judiciary will follow later this year. Such guidance will be welcomed and of great utility for the judiciary and practitioners alike.  <a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/" target="_blank" rel="noreferrer noopener">Avaia</a> is a first six pupil under the supervision of Sara Anning and Rebecca Musgrove and will be taking instructions on all aspects of children law from April 2025. He has a particular interest in transparency, access to justice and ensuring broad participation within the family courts.  <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe</a> is a tenant at Parklane Plowden, having completed her pupillage in 2020. Chloe practices largely in public and private children law representing parents, children, Local Authorities and intervenors. As an autistic barrister, Chloe has developed a particular interest in cases involving 1 or more of the parties being neurodivergent. Chloe has written articles for publications including the Family Law Journal and is co-chair of the North Eastern Circuit Neurodiversity Network.

Ashes, Funerals, and Family Conflict

Read v Hoarean [2024] EWHC 3274 (Ch)  There is no right of ownership in a dead body and disputes can, and regularly do, arise over funeral arrangements and the final resting place of the body or ashes of a loved one. These disputes can be particularly fraught when the Deceased was a child and the parents cannot agree.  In Read v Hoarean, the Deceased was 18 years old when he took his own life in 2024. As the Deceased died unmarried, without children, and intestate, the persons with the right to call for his body to arrange the funeral and proper disposal were his parents<a id="_ftnref1" href="#_ftn1">[1]</a>. His parents were separated and did not enjoy a good relationship, having been involved in protracted and hostile litigation in the family courts when the Deceased was younger. At the time of his death the Deceased was experiencing mental health difficulties and was living in assisted living. He enjoyed a close relationship with his father but had had no direct contact with his mother since 2016.  The parents were agreed as to the location of the funeral and that the Deceased should be cremated but could not agree over the identity of the funeral director or what should happen to the ashes. The father wished the ashes to be scattered on Dartmoor. The mother wanted the ashes to be divided between the parents so that she could inter her half in her family’s grave. The mother’s position was set out in the judgment:  She said that she could not see why dividing the ashes would be disrespectful, she just simply could not see why, because he was equally part of both of them, and if his ashes were scattered they would be lost to the wind, that she cannot go and say goodbye to her son, so that is why she proposed that there be two ceremonies and that Theo’s ashes be divided equally between the parents so, as she describes, each got what they want.  The father considered that the division of ashes was morbid and disrespectful and it was noted that “he plainly felt very strongly about this”. The father agreed that there should be two funeral services.  Having reviewed a number of cases, Chief Master Schuman concluded that body disputes are highly fact sensitive, but that in considering the wishes of the Deceased, their family, and friends, and the location with which the Deceased was mostly connected, the overarching principle is that there should be a decent and respectful disposal of the body without undue delay.  Having heard evidence from both parents and read witness statements from other witnesses including the Deceased’s friends and wider family members, Chief Master Shuman concluded that she did not know what the Deceased’s wishes were, but that the Deceased had close connections and a feeling of peace when at Dartmoor. Chief Master Shuman therefore ordered that Letters of Administration limited to dealing with the disposal of the Deceased’s body and thereafter his ashes should be made to the father. It was further ordered that the mother should be permitted an opportunity to spend time with the Deceased before the cremation, and that some personal items belonging to the Deceased should be given to the mother. If the mother and father could not agree on the funeral, the mother was to be permitted to have her own service beforehand.  The practical effect of the order was that the ashes were not to be split, although the Master made no specific comment on this issue, or on the case of Fessi v Whitmore<a href="#_ftn2" id="_ftnref2">[2]</a>, to which the Master referred, where Judge Boggis QC rejected splitting the ashes of a 12 year old child between his parents, describing the submission as “wholly inappropriate”.  Comment  The compromise of holding two funeral services is one I see regularly in practice, along with an agreement that one party will hold a funeral before the burial/cremation and another party will hold a memorial service afterwards. But disputes over ashes can be much more difficult to resolve.  In Read, the parties aired their arguments about what should happen to the ashes before the cremation, and in granting the father the right to Letters of Administration pursuant to s.116 of the Senior Courts Act 1981/the inherent jurisdiction of the court, the court settled the issue by determining that the father was the party who could scatter the ashes. But many ashes disputes arise only after the cremation (sometimes years later) by which time of course the body has already been disposed of and there is usually one party in possession of the ashes.  Although it has been clearly established for many years that there is no right of ownership to a dead body, the position with ashes is not as clear cut, and ashes have been deemed by the court to be property which can be owned. In the Australian case of Leeburn v Derndorfer<a id="_ftnref3" href="#_ftn3">[3]</a> Byrne J, sitting in the Supreme Court of Victoria said,  “Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence<a id="_ftnref4" href="#_ftn4">[4]</a>. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”  Byrne J then concluded that the executors held the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”  The conclusion reached by Byrne J, that the process of cremation has the result of transforming the ashes into property, was followed by DJ Marin in DP v JCP<a href="#_ftn5" id="_ftnref5">[5]</a> who held that an executor in possession of ashes holds them on trust for the purposes of the family disposing of them, and Judge Boggis QC in Fessi determined the ashes dispute on the basis that the court was being asked to resolve a dispute between two trustees.  It can therefore be seen that disputes over ashes which arise subsequent to the cremation are not going to be resolved by making a s.116 application to appoint a Personal Representative, but will be proceedings under CPR 64 for determination of an issue arising out of a trust.   Nicola Phillipson TEP  February 2025  Nicola Phillipson is a barrister at Parklane Plowden Chambers specialising in Probate, Inheritance, and Trusts, and is the author of <a href="http://www.lawbriefpublishing.com/product/controlofthebodyafterdeath/" target="_blank" rel="noreferrer noopener">A Practical Guide to the Law in Relation to Control of the Body after Death (Law Brief Publishing)</a>  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/image.jpeg" alt="" class="wp-image-10766" style="width:57px;height:auto"/></figure>  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> Rule 22 of the Non-Contentious Probate Rules 1987  <a href="#_ftnref2" id="_ftn2">[2]</a> [1999] 1 FLR 767  <a href="#_ftnref3" id="_ftn3">[3]</a> [2004] WTLR 867c  <a href="#_ftnref4" id="_ftn4">[4]</a> [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.  <a href="#_ftnref5" id="_ftn5">[5]</a> [2010] COP 11692737

Consensual Adoption – PLWG Best Practice: A Guide

And so it was, the final article in my series covering the Public Law Working Group’s recommendations for best practice for adoption. For the final part of the series, we consider Chapter 5 of the report. This section takes a look at adoptions which are processed and ordered by the consent of the biological parent/s, that is, where the parents agree to the child being placed for adoption, or being adopted by a specific individual.  Whilst adoption by consent is an issue which, on the board of adoption matters generally, takes up a small place, it is a vitally important area. The decision to relinquish a baby is a significant and life-changing choice – currently, the availability of expert and professional services to respond to these cases is limited at best.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.   Introduction  From 1926, those who cared for a baby who was not their biological child, could acquire an adoption order resulting in those carers legally being seen as birth parents. The 1926 Act ensured that consensual adoption was clearly focused on the child’s welfare and the consent was given fully informed and without reward or payment.  The Act significantly increased the number of children who were adopted, but the societal issues surrounding women becoming pregnant before marriage continued with full force. There were no measures in place to support such women, or even the children.  A 2022 report by the Joint Parliamentary Committee on Human Rights for the years 1949-1976 resulted from the testimonies of women who had their lives damaged by the pressures to ‘give up their baby’ for adoption. As the report summarises:  “Many young women were sent away from home to conceal their pregnancy, and many spent their final weeks of pregnancy and weeks after the birth in mother and baby homes. Some of our witnesses recounted the abuse they faced whilst away from home. We were struck by descriptions of the ways in which the women were being “punished” for what was seen as a transgression. There was an overwhelming feeling amongst the mothers we heard from that their treatment during and after giving birth was deliberate punishment for their pregnancy while unmarried”  Over the years, support increased for single parents, and the pressure on mothers to ‘give up their babies’ for adoption reduced. By the 1980’s, adoptions fell by over half. As of 2015, the number of children being adopted from care hit a high of 5360 and have since reduced continually.  A significant reason for this reduction includes the Supreme Court case of Re B [2013] UKSC 33 and the clarification provided thereafter in Re B-S (Children) [2013] EWCA Civ 1146 – producing the phrase all within the adoption sphere are aware of, “nothing else will do.”  That being said, the PLWG note that:  “Although the numbers are not large, there remains a steady number of cases where birth mothers (sometimes supported by the birth father) seek to relinquish the baby for adoption at birth. A number of these cases involve families who are foreign nationals.”  The aim of the subgroup was to look at this marginal, yet societally and practically complex issue.   Legal Framework  s.19 of the Adoption and Children Act 2002 (“ACA 2002”) sets the framework for consensual adoptions:  “(1)Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child— (a) being placed for adoption with prospective adopters identified in the consent, or (b) being placed for adoption with any prospective adopters who may be chosen by the agency, and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.”  The child’s welfare remaining a considerable factor.  Despite being a consensual process, there remains a significant role for the adoption agency. When a parent approaches an adoption agency to relinquish their child, that agency must offer counselling to explore the options and to understand the process and consequences. Such referrals can come from the mother, the hospital, or a family member or community individual.  Some mothers will not engage in the process, occasionally leaving the hospital alone and avoiding further contact (it is vital to note that no judgment is, or should be, cast upon such mothers, the circumstances and thinking of such women are unlikely to ever be known by any professionals – for most, the decision is as child centred as they come).  Where counselling is engaged in, the Working Group are clear that:  “This requires both experience and expertise and time and resources from the professional providing that counselling as well as sufficient support being available to the professional to ensure the highest quality of practice in enabling these life changing decisions.”  Given the re-structuring of adoption services through Regional Adoption Agencies, uncertainty has developed around who is responsible for certain services. It may not be clear to families who to contact, especially at a time of such struggle, when timeliness is so key.  In 2021, over 200,000 pregnancies were terminated, with the rates for those under 18 dropping. Many professionals are clear that, in a significant number of cases, mothers seeking to relinquish their baby only became aware of their pregnancy late in term. As Mr Justice Holman stated in Z County Council v R [2001] 1 FLR 365:  “Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies… There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”  In Re A, B and C (Notification of Fathers and Relatives) [2020] EWCA Civ 41, the court grappled with the question of whether fathers should be notified of cases where the mother seeks to relinquish their child. The Court of Appeal set out the principles governing such decisions.  <ol class="wp-block-list"> <li>The law does provide for ‘fast-track’ adoptions where all those with parental responsibility consent. The mothers Article 8 rights can only be infringed where necessary.</li>  <li>The nature of adoption is capable of justifying the overriding of those rights, but turns on each case.</li>  <li>The decision is one which requires priority, urgency, and thoroughness.</li>  <li>The Judge must establish the facts as clearly as possible. The reasons for such relinquishments must be treated respectfully, but their account must be scrutinised given it is one sided, as such, as much information should be gathered without breaching confidentiality.</li>  <li>There must be struck a fair balance between those interests involved, with the welfare of the child being important, but not paramount.</li>  <li>There is no single test for all cases, but key themes will be relevant: <ul class="wp-block-list"> <li>Only where compelling should a father who holds parental responsibility not be notified.</li>  <li>The more established the family life (Article 8), or potential such rights, the stronger the reasons to withhold notification.</li>  <li>The substance of the relationships between interested persons must be assessed, ensuring those who are silent are given a voice. Essentially, if their voice were known, what may the person say.</li>  <li>Is there a realistic family placement. If there clearly no viable placements via the father’s family, the need to maintain confidentiality are strengthened.</li>  <li>The impact on the mother is key. Where she would be at serious risk (such as sexual assault or honour based violence) this must weigh heavily. However, short term difficulties must not prevail.</li>  <li>Cultural and religious factors must be considered, particularly where these connections may be important for the child as they grow.</li>  <li>A mother cannot be forced to provide confidential information, including the details of the father. The court must consider the likelihood of the confidential information becoming known at a later date.</li>  <li>Whether notification will delay the outcome for the child, whilst not a key factor, it is important to consider the impact such delay may have.</li>  <li>All other relevant matters, axiomatically, are relevant.</li> </ul> </li> </ol>  Despite the clear guidance from the higher courts, there remains an issue of the procedure not being complied with; in A Local Authority v C , M and The Prospective Adopters [2023] EWFC 17, by the time of final order, proceedings had lasted 20 months. Such cases are, of course, very difficult and, as noted by the Working Group:  “…there is a risk that pregnant women who face very high hurdles in placing the baby for adoption may choose not to cooperate with the local authority or worse still to give birth in secret.”  Similarly to adoption agencies, CAFCASS also play a significant role in consensual adoption. CAFCASS have issued thorough guidance on good practice in these cases, notably, this sets out the information which should be provided to birth parents in reaching a decision about the child’s future and ensuring that the decision is made such that it can be implemented lawfully with the future consequences being fully addressed.  The PLWG note that:  “Birth parents considering adoption, need to have access to independent legal advice in order to fully understand their rights and options, including the short and long-term consequences for them and their child (and indeed other children that they may have). For those unable to pay, public funding is very restricted however, costs can be covered by the Regional Adoption Agency or local authority.”   Recommendations  Given the marginal nature of consensual adoption, the recommendations of the Working Group are similarly slim, however, the issue is an exceptionally important one and it is vital that decision making is properly informed and progressed properly. As such, the PLWG recommend that:  <ol class="wp-block-list"> <li>There must be focussed training for adoption workers on relinquishment cases. Given these situations are rare, when they do arise, there is often nobody experienced able to deal with them.</li>  <li>There should be a national strategy for relinquishment cases, with agencies establishing clear plans and principles.</li>  <li>Where possible, pre-birth planning should take place, this could include the need to apply to the courts as early as possible.</li>  <li>Early Permanence Placements should be considered for babies relinquished at birth.</li>  <li>There should be regional hubs created to provide information and expertise to parents, with longer terms support being available, including, where appropriate, securing the maintenance of relationships between the child and birth parents.</li>  <li>The consent forms which are signed by parents should be reviewed to ensure they are as clear and as straightforward as possible.</li>  <li>Legal aid should be available for parents considering relinquishing their baby. This should be available both before and after birth.</li> </ol>   Consultation Replies  “The consultation responses were diverse in their focus and comprehensive in their recommendations. It is clear that a number of the issues identified in the responses were seen to be a priority.”  Challenges to the current adoption system include: modernising contact post adoption; the proper processing and availability of access to adoption records; and the pressures on adoption professionals, including financial constraints on the public sector.  With respect to adoption by consent, the responses identified a fall in referrals regarding unplanned pregnancy. This fall appears to result from a) a reduction in women coming to the UK from Europe; and b) women at university accessing effective contraception and/or abortion services.  Unplanned pregnancies are a stressful experience and can cause a significant crisis for the women and those around her, including the father. There are also practical concerns, notably income, housing, and lifestyle changes. Most importantly, of course, are the needs of the child and their experiences.  The limited number of cases is having a noticeable impact on the availability of quality services where such cases do arrive, given the ability to adoption services to develop clear expertise in this area is low. The PLWG reports that adoption judges in Birmingham responded to the consultation, noting that:  “We see relatively few applications for adoption by consent. Our experience in Birmingham is the same as elsewhere in that social work managers are under considerable pressure. In addition, social work managers are often relatively inexperienced, compared to 10 years ago […] There are a small number of cases. We agree that as a result, there are limited opportunities to build expertise.”  This reinforces the need for focussed training for social workers and CAFCASS to be able to deal with consensual adoption cases. It is important to remember that, at the centre of each case, are the individual women faced with such life-changing issues, this demands expert professionals.  The absence of localised expertise and experience is significant, this requires coordinated practice improvement across the board, to ensure that services are able to provide:  <ul class="wp-block-list"> <li>Individualised information</li>  <li>Services which enable workable solutions for the families</li>  <li>Legal support</li>  <li>Healthcare support</li>  <li>Practical support</li> </ul>  As noted by the Working Group, this is a serious challenge, but:  “…a humanistic society does have a duty to provide support in finding workable solutions for individuals faced with life changing circumstances, both mother and baby.”   Conclusion  The PLWG’s recommendations on consensual adoption highlights the need for a more structured, supportive, and informed process for birth parents who choose to relinquish their child for adoption, whatever the reasons may be. While such cases are relatively rare, they are nonetheless important and present unique challenges that demand specialist knowledge and careful handling to ensure that both the rights of the parents and the welfare of the child are properly safeguarded. The report’s proposals focus on improving the accessibility of information, enhancing professional expertise, and ensuring that decision-making is fully informed and lawfully implemented.  The overarching recommendation is the need for dedicated training for adoption professionals, given the infrequency of these cases. Without a pool of experienced practitioners, the risk of procedural missteps and inadequate support increases (a matter we see more routinely with international cases). Establishing regional hubs and national strategies would provide a more consistent and reliable framework, ensuring that those faced with the life-changing decision of relinquishment receive expert guidance, legal support, and practical assistance, or those dealing with such cases able to access specialist oversight.  The issue of parental consent in adoption is particularly sensitive, requiring careful balancing of the mother’s right to privacy with the need to ensure that all relevant parties, including the father and extended family, are considered. The case law underscores the importance of a fair and thorough assessment, ensuring that mothers who wish to maintain confidentiality are afforded appropriate protections while still prioritising the child’s long-term welfare. The provision of early permanence placements and clearer consent forms would further streamline this process, reducing delays that can be distressing for both birth parents and prospective adopters.  A central concern is the lack of accessible and independent legal advice for parents considering relinquishment. The recommendation that legal aid should be available both before and after birth is an essential and logical step towards ensuring that parents can make informed decisions without financial barriers or this additional worry. Without this safeguard, there is a risk that decisions may be made without a full understanding of the consequences, leading to potential legal challenges or later distress for birth parents and children alike.  Although consensual adoptions form a small proportion of adoption cases, their significance cannot be overstated. The decision to relinquish a child is profound, and the adoption system, especially practitioners, simply must be equipped to provide the necessary legal, emotional, and practical support to all those involved. The Working Group’s recommendations, if implemented, would create a more robust system that respects the rights of birth parents while ensuring that every adopted child has the best possible start in life.

Sara Sharif Judges to be Named – Court of Appeal Delivers Stinging Judgment

Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, summarises the Court of Appeal judgment in Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, the appeal concerning whether the historic judges involved in Sara Sharif’s family proceedings should be named.  The background to the matter concerns the tragic circumstances of the murder of Sara Sharif by her father and step-mother. Following her murder, several journalists sought information from the family proceedings and accordingly applied to the court for this disclosure.  A vast amount of material was disclosed, however, in making this order, Mr Justice Williams unilaterally made an order that the judges who had previously been involved in proceedings must not be named. This focused mainly on the Article 8 rights of the judges.  The decision was quickly appealed, and the decision, the first of its kind, was considered by the Court of Appeal who, in delivering a stinging and critical judgment, found that:  “…the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so…”  The Master of the Rolls further explained that:  “…He knew he had no evidence, and he could have realised that the judges would not wish to provide any evidence (as has happened). In short, the whole idea of anonymising the judges was, I have to say, misguided.”  The judgment is a significant moment in reaffirming the principle of open justice, particularly within the context of the family courts, still known for their overarching secrecy. The Court of Appeal’s decision emphasises the constitutional importance of transparency and accountability in judicial proceedings.  For the full summary and commentary, visit <a href="https://www.familylawweek.co.uk/judgments/tickle-anor-v-the-bbc-ors-2025-ewca-civ-42/" target="_blank" rel="noreferrer noopener">Family Law Week</a>.  The full judgment is available on <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2025/42.html" target="_blank" rel="noreferrer noopener">BAILII</a>.

International Adoption – PLWG Best Practice: A Guide

Moving onto the fourth and penultimate article in my series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 4 of the PLWG report. This section addresses a more niche element of adoptions, those that are either international, or have an international element. As it stands, adoptions with an international element are extremely confusing, legislatively complex, and rife with delay. This chapter aims to provide background to the chaos involved in such adoptions and seeks to provide a comprehensive recommendation to move forward.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.  The terms ‘country’ and ‘state’ are used interchangeably in this article to refer to the Central Authority within that country whose role it is to deal with international adoptions.  Introduction  The Working Group’s remit was to consider not only reform to the procedure of international adoption, but any changes to the substantive law. As part of this, three key areas were identified:  <ol class="wp-block-list"> <li>Whether the statutory framework is sufficiently clear;</li>  <li>Whether there needs to be any changes to the statutory framework or procedure;</li>  <li>Whether good practice guidance would be of assistance.</li> </ol>  International Adoptions Generally  Broadly speaking, the PLWG define international adoptions as any incoming or outgoing adoption involving another country. These include adoptions under the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (“the Hague Convention” or “the 1993 Convention”); adoptions governed by s.66 of the Adoption and Children Act 2002; adoptions under s.57 of the Family Law Act 1986 and common law adoptions; and domestic adoptions concerning overseas resident children.  It is not common in England and Wales for adoption orders to be made in favour of wider family, but where a placement is overseas, adoption may be necessary with respect to security of placement and immigration status. Similarly, there are children from outside the jurisdiction placed in the UK for adoption.  These cases are very complex and often lead to delay. The aim of the PLWG report in this area is to identify how improvements can be made to these harmful complexities.  Adoptions Pursuant to the 1993 Hague Convention  The UK is a Contracting State to the 1993 Convention, incorporated domestically via the Adoption (Intercountry Aspects) Act 1999 and the Adoptions with a Foreign Element Regulations 2005 (“the 2005 Regulations” or “the AFER 2005”). The 1993 Convention, at its core, is a partnership agreement between countries – the ‘origin’ country of the child is responsible for assessing the child, and the ‘receiving’ country is responsible for assessing the adopters. Neither state has a higher authority.  The Convention requires the receiving state to confirm that, upon adoption, the child will receive an immigration status such that they can permanently remain within the jurisdiction. Upon both confirming the match and an order being made, ALL Convention states MUST give effect to the order. There is no need to seek further orders within those states.  Whichever jurisdiction makes the adoption order (usually the ‘origin’ country, but there is nothing in law preventing the ‘receiving’ country making the order), must issue an Article 23 certificate confirming the Convention process has been followed (including dates of Article 17 agreements). This certificate (subject to the rare exception under Article 24 that the adoption is contrary to that state’s public policy) then binds every Convention state.  The 2005 Regulations are not a self-contained set of rules. They instead supplement the existing domestic framework contained within the Adoption and Children Act 2002 and the Adoption Agency Regulations 2005. International adoptions are also dealt with by way of further legislation (Children and Adoption Act 2006; Local Authority (Adoptions) (Miscellaneous Provisions) Regulations 2005). As such, those unfamiliar with the process, including professionals, can quickly become overwhelmed. The need to cross reference numerous regulations is complex, however, the legislative framework is very thorough and specialist lawyers are able to navigate this (though this requires Local Authorities to either have, or instruct, said specialist lawyers).  Outgoing Convention Adoptions  Local Authorities and the courts must consider whether a child who cannot be cared for by their birth family can be cared for by their wider family. This duty exists even if the wider family live overseas (the rationale being that it is better for a child to maintain family ties abroad, than to sever those ties domestically).  The PLWG did not look at the conduct of assessments of overseas family members, however, the Working Group did note that some authorities were reluctant to engage with the overseas assessment process in a timely manner. The Working Group note that authorities can seek support from Children and Families Across Borders and the Outbound Permanence Service (via Coram BAAF).  Many overseas placements do not involve adoption (these can often be affected under other orders such as Special Guardianship Orders), but some placements necessitate this, such necessity often coming from immigration status or SGO’s not being an order in the receiving state.  The Convention framework does not sit well with the typical adoption process in England and Wales, where children are removed due to abuse or neglect, or where there is nobody to exercise Parental Responsibility. Article 4 of the Convention specifically sets the groundwork that a Local Authority must obtain a placement order, Article 17 further set out requirements that the Central Authorities have agreed the adoption.  Children habitually resident in England and Wales are very rarely placed abroad for adoption unless it is to be with family members due to parental abuse or neglect. These children should be placed as soon as possible, but the Convention requirements, domestic legislation, and immigration laws make this very difficult, in some cases impossible.  The domestic legislation sets up somewhat of a paradox. Section 85 ACA 2002 makes it an offence to remove a child from the UK for the purposes of adoption, unless the prospective adopters have been granted parental responsibility via section 84. The issue, however, is that an application under section 84 cannot be made unless the court is satisfied that the child and the prospective adopter have had sufficient opportunities to be seen together – both countries additionally still need to comply with Articles 15, 16, and 17 of the Convention.  It is therefore in the child’s interests to obtain a Convention adoption order in the domestic courts. Re M (A Child) (Adoption: Placement Outside Jurisdiction) [2011] 2 WLR 1264 held that an offence would not be committed under s.85 in those circumstances as, any ‘visit’ the child made to the prospective adopters would not be for the purpose of adoption in that state, but to further a domestic Convention adoption.  Incoming Convention Adoptions  Incoming adoptions are not a frequent occurrence and, when these do happen, the burden on the domestic authorities is lesser given the assessment of the children is for the state of ordinary residence. The PLWG do however note that, adoption agencies do not always appreciate the complexities of Convention adoptions.  It is recommended that there is an open access hotline for social workers to obtain advice and information on any adoption with an international element, this is especially vital where the prospective adopters do not, or cannot, instruct lawyers. Procedural difficulties are often not noticed until several steps into proceedings, leading to significant delay and harm to the child and families.  Non-Convention Adoptions (Outgoing)  Children can only be taken out of the UK for adoption purposes via a section 84 order. This requires compliance with the 2005 Regulations. Section 84 is not available to those normally resident in the UK, it is designed solely for foreign nationals to assist in foreign adoption.  A s.84 order removes parental responsibility from all other people and grants this to the prospective adopters. It also authorises the removal of the child from the jurisdiction for the purposes of adoption. An order under s.84 is not, however, guaranteed to be recognised in the foreign court.  If the adoption is agency, the child must be placed with the prospective adopters for at least 10-weeks before an application under section 84 is issued.  If the child is looked after by a Local Authority, permission to remove from the jurisdiction can be sought under Schedule 2 of the Children Act 1989 prior to the granting of a placement order. Where a Local Authority is permitted to place a child for adoption, removal from the jurisdiction is then governed by section 28 ACA 2002. The position is not clear on whether s.28 can be used to allow the child to remain outside the jurisdiction, or to be placed for adoption whilst they remain outside the jurisdiction (there are no reported cases on this matter).  If the child is not looked after, it is difficult for the prospective adopters to comply with section 84, and s.42 where it is a non-agency adoption (this requires the child to be seen by the Local Authority). One possible way around this is that the Local Authority make a temporary home for the prospective adopters within the jurisdiction, for 10-weeks. It is clear this is not a viable position. It is therefore more straightforward for public law orders to be made and for a mirroring order to be obtained in the non-Convention state.  This is not always the right path for a child, and it may not overcome immigration issues in some states. But if it is, the proposed adopters may then seek to adopt at a later stage (having then complied with the s.84 requirements by virtue of an alternative order), this is uncontroversial if the state is a party to the Hague Convention Parental Responsibility and Protection of Children 1996 (not to be confused with the 1993 Convention which has been the subject of this Chapter) this is simple. If the state is not a party, it is liable to be extremely complicated. Though the cases where these issues transpire are very small.  Non-Convention Adoptions (Incoming)  Unlike outgoing non-Convention adoptions, there are a significant number of inbound adoptions under section 57 of the Family Law Act 1986. These cases are dealt with under the High Court’s inherent jurisdiction but can be heard by a High Court Judge sitting in the Family Court.  If the adoption is an overseas adoption pursuant to s.87 ACA 2002 (under the law of a country listed in the Adoption (Recognition of Overseas Adoptions) Order 2013), it will automatically be recognised in England and Wales and there is no need for proceedings to recognise the child’s status under English law (but this process does not confer British citizenship).  If an adoption order is made outside the jurisdiction and neither the Convention nor s.87 apply, the adoption may be recognised according to common law. Re Valentine’s Settlement [1965] Ch 831 set out four principles:  <ol class="wp-block-list"> <li>The adoptive parents have been domiciled in the foreign country at the time of the adoption;</li>  <li>The child was legally adopted according to the law of that jurisdiction;</li>  <li>The adoption has the same substantive characteristics and concept as an English adoption;</li>  <li>There must be no public policy reason refusing the recognition.</li> </ol>  Where these criteria are met, a person may apply under s.57 Family Law Act 1986 for recognition of the common law adoption.  Where the criteria in Re Valentine’s Settlement are not met, the courts may still recognise an adoption where to not do so would be a breach of the Article 8 rights of the children and prospective adopters (such cases being extremely rare, and extremely complex).  Dual applications for common law recognition and declarations of status requires the court to deal with different principles to each application and their domicile. Recognition will rely on the applicant’s domicile at the date of application, but a s.57 declaration will rely on the applicant’s domicile at or prior to the application.  Section 83 ACA 2002 makes it an offence to bring a child resident outside the UK into the UK for the purpose of adoption (a reverse of s.85) unless the Convention has been complied with. Whilst such adoptions are factually complex, the courts apply domestic law and assessment takes place within the jurisdiction. Where a person breaches s.83, the courts do not automatically refuse to make an adoption order.  Most applications to adopt from overseas are compliant with the 2005 Regulations, the prospective adopters will be registered and approved by the Department of Education. Upon returning to the UK with the child, there is further assessment and, following the child having lived with the prospective adopters, a further report to the court.  The biggest issue with such adoptions, despite a rigorous and complex process, including government departments, is that there is no recognition of the process at the visa stage when the child is finally ready to join their intended family. As noted by the Working Group:  “The apparent systemic failure to process visa applications promptly…to enable the child to enter the UK and begin their lives with their newly adopted parents…is lamentable.”  In some cases, years off delay can ensue, causing unnecessary emotional and financial hardship. The Working Group recommend that policy is amended to allows such children a special status with the Home Office at the visa stage. Whilst the usual checks should continue to apply, these should be fast-tracked, the delay otherwise being harmful to the welfare of the child.  Where adopters are domiciled in the UK but are habitually resident elsewhere, section 83 does not apply. If an adoption is made in a country not on the list in the 2013 Order, then it will not be recognised. A visa can be applied for on the basis of a period of care abroad, this may allow the child to settle in the  UK, but it does not alter the family law status – these parents may apply for a domestic adoption despite being habitually resident elsewhere.  In these cases, the child must have lived with the prospective adopters for at least three-years (unless this time is abridged by the court). At the point of being able to make the application, three years having passed often means there are difficulties tracing parents to obtain consent. The PLWG suggest considering whether allowing an application after 6 to 12 months would be more appropriate.  PLWG Conclusion  “The current system is just about working but the sheer complexity of it is illustrated by the number of statutes and statutory instruments which govern the process in England…”  With a possible combination of up to 18 pieces of legislation dealing with adoption (not including the international law), the complexity cannot be understated. Delays, misunderstanding, and mistakes are too common in adoptions with an international element.  The overarching recommendation of the Working Group is to review the legislative framework for international adoptions, such that this is contained within a single Act of Parliament, with regulations where necessary. Where regulations are required, these should be dealt with in a way to not require cross-referencing so as to leave the process more accessible to all involved.  The PLWG recognise that this is a major statutory task, and, outside of such reform (hopefully in the interim at most), recommend the following:  <ol class="wp-block-list"> <li>The Central Authority’s should update and expand the written guidance for intercountry adoptions to draw together the legislation into one place.</li>  <li>Consideration should be given to setting up a specialist referral unit.</li>  <li>The Central Authority’s should work closely with the Home Office where applications are relevant to immigration status decisions.</li>  <li>Section 84 ACA 2002 should be amended to make explicit that prospective adopters may be assessed overseas without committing an offence under s.85.</li>  <li>The regulations should be reviewed for inconsistencies (such as the paradox created by regulation 46, requiring a placement order and parental consent)</li>  <li>Regulation 47(1)(d) of the 2005 regulations should be amended to make clear this relates to the receiving state.</li>  <li>Practice Directions should be drafted to govern applications under Schedule 2 to the Children Act 1989 or applications under s.28 ACA 2002.</li>  <li>Cafcass Legal must be given sufficient resources to allow them to advise in such complex cases, often being the only lawyers involved.</li>  <li>The Home Office should create a fast-track process for visa approval where the applicant has fully complied with the regulations.</li>  <li>Section 42 should be amended to allow applications where adopters are habitually resident outside the UK to be made after six months.</li>  <li>Consideration should be given to amending the Children and Adoption Act 2006 to require mandatory review of countries on the banned list every three years.</li> </ol>  Conclusion  The PLWG's recommendations on international adoptions highlight the significant complexities and challenges within the current system. By addressing gaps in legislative clarity, procedural inefficiencies, and the burdens placed on families and professionals, these proposals aim to simplify the framework while safeguarding the welfare of children involved in cross-border adoptions. The overarching call for consolidating legislation into a single statutory framework is a bold but necessary step towards reducing delays and ensuring that all parties can navigate the process with greater ease and confidence.  The proposed amendments to legislation and practice have the potential to transform the landscape of international adoptions. Streamlining the statutory framework into one cohesive Act would resolve much of the confusion caused by the current patchwork of regulations. This would not only benefit legal professionals and social workers but also provide prospective adopters with a clearer understanding of their obligations and rights. Such simplification is particularly critical for cases involving vulnerable children, where unnecessary delays can have a profound and lasting impact on their stability and well-being.  The emphasis on inter-agency collaboration, particularly with the Home Office on immigration matters, is another pivotal recommendation. By fast-tracking visa applications for children who have complied with all adoption regulations, the welfare of these children can be prioritised, reducing emotional and financial strain on families. Furthermore, enabling overseas assessments under section 84 without triggering offences under section 85 would mitigate procedural roadblocks and allow children to transition into stable placements more swiftly.  Whilst the PLWG report does not consider this position within Chapter 4, the Working Group’s vision for "open" adoptions domestically, as advocated for in Chapter 1 of the report, introduces an interesting parallel for international adoptions. If adopted children can maintain ties to their birth families without severing connections entirely, the rationale for prioritising family placements abroad – despite logistical challenges – may shift. Courts might feel more confident in pursuing domestic solutions or alternative orders when open adoptions ensure that biological ties remain intact and meaningful. This evolution could reduce reliance on complex international placements, particularly in cases where immigration or procedural barriers make overseas placements less practical, but, at least currently, mandatory to pursue.  The PLWG's recommendations for international adoptions reflect a nuanced understanding of the countless challenges faced by children, families, and professionals. By fostering legislative coherence, enhancing inter-agency cooperation, and promoting a child-centred approach, these proposals have the potential to transform the adoption system. Ultimately, the recommendations align with the broader goal of creating a framework that balances the need for permanency and security with the preservation of identity and familial connections, ensuring the best outcomes for children involved in international adoptions.

Thursday, 30th January | Hybrid training event – OurFamilyWizard

PLP's Family Team are hosting a hybrid training seminar, taking place both in chambers and online, on 30th January at 4:30pm, in association with <a href="https://www.ourfamilywizard.co.uk/" target="_blank" rel="noreferrer noopener">OurFamilyWizard</a>, the global co-parenting platform.  The event will cover OurFamilyWizard's parenting app, including the features of the app, new additions to the app such as recording phone calls, and information about the scheme OurFamilyWizard run which enables clients with certain financial needs to obtain the app, with full features, for free.  Following the training there will be a Q&A and general discussion.  Light snacks and refreshments will be served for those attending in person; for those attending remotely the link will be sent out closer to the date.  If you would like to attend, please contact <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>.

New Clerking Appointment at Parklane Plowden

PLP continues to expand and enhance its clerking team, further strengthening its stellar reputation for client service.  Following the appointment of Paul Clarke as Senior Practice Director for the Civil and Employment teams in November 2024, PLP is pleased to announce the appointment of a new Assistant Practice Director for the Family, Chancery, and Commercial teams.  <a href="https://www.parklaneplowden.co.uk/clerks/matthew-taylor/" target="_blank" rel="noreferrer noopener">Matthew Taylor</a> joins PLP with extensive experience in clerking across various legal disciplines, making him a valuable addition to the team.

Welcome Back Maxine Best and Naakesha Michl

Parklane Plowden are delighted to welcome back family barristers Maxine Best and Naakesha Michl.  Maxine and Naakesha both return to Chambers on the 15th January 2025 after a period of maternity leave and will be accepting instructions in family law children matters.  To instruct either Maxine or Naakesha, please contact the family clerking team on <a href="mailto:familyclerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">familyclerks@parklaneplowden.co.uk</a> or call 0330 390 4303.  You can find out more about Maxine and her practice <a href="https://www.parklaneplowden.co.uk/our-barristers/maxine-best/" target="_blank" rel="noreferrer noopener">here</a>, and Naakesha and her practice <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/" target="_blank" rel="noreferrer noopener">here</a>.

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