raw_content: Tag Archives: adoption
  Human Rights and Adoption
  It’s what we don’t know we don’t know that gets us every time
  I was asked to speak at the recent Open Nest Collaborative Conference on Monday 14th October in York – just five minutes on human rights. O easy I thought, just a quick chat about Article 8, job done.
  But then Amanda Boorman, founder of the Open Nest Charity showed me what she had written down as important to get across to the audience.
  Protocol 1 Article 1 of the ECHR provides
  Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
  Amanda, rightly, thought this was very important from the perspective of the child in the care system, who finds their treasured possessions lost or thrown away as they are moved about from placement to placement.
  She also wanted to talk about Article 14
  The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
  This was clearly very important in light of the growing concern about the impact of poverty on how likely it was to find yourself referred for a child protection concern.
  I was shocked to consider that it had simply not occurred to me – the lawyer – to discuss either of those two issues. I was content to trot out our old favourite Article 8 – the right to a family and private life, to psychological integrity – but the right that cuts both ways for the child in the care system; their ‘right’ to retain some kind of link with their birth family, considered of less or even no importance when balanced against their need for a ‘warm, loving forever family’.
  So I had to confess my embarrassment that it had not even occurred to me to examine either of these rights, despite the impact both had on children and families in care and adoption proceedings.
  I recalled earlier unease when I discussed the ECHR with social workers on Twitter and found that they did not seem aware of the importance of such rights- I wrote about that here.
  This concern had also been stated by Brid Featherstone that day, in her talk about the BASW Inquiry into the role of the social worker in adoption
  We found social workers were ignorant of human rights and didn't use ethical frameworks. What does this mean for us as a profession? Education, training and policy. BASW committed to developing framework. But need to take off the shelf and make it real.
  — Sarah Phillimore (@SVPhillimore) October 14, 2019
  She asked the audience what do YOU think we need in this framework? At every stage of process, to ask – what should social workers be doing?
  Andy Bilson then raised the UN Convention on the Rights of the Child -this has has 54 articles setting out the civil, political, economic, social and cultural rights that all children everywhere are entitled to. It is ‘the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history’ . The Social Services and Well Being (Wales) Act 2014 makes specific reference to the UN Convention in its ‘overriding duties’ at Part 7 – a person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).
  However I don’t think I have ever made reference to the UN Convention in any English case in my now 20 years of practice. Hopefully the consideration by BASW of a new framework for social work education about human rights can bring the UN Convention more sharply into focus.
  Why are Human Rights important?
  But if I , the lawyer, couldn’t see the importance of Protocol 1 and Article 14 in the context of adoption, without it being pointed out to me – how can I criticise social workers for not being as alive to the ECHR and its implications as I would wish?
  So I thought it worth a reminder of why the human rights framework is so important when looking at State intervention in family life – particularly when the State intervenes to remove children permanently from their family of origin on a low standard of proof.
  The European Convention on Human Rights (ECHR)
  The European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe – this is separate from the European Union and is larger, it has 47 members as opposed to the EU’s 28 (or shortly 27). Therefore it will NOT disappear if Brexit actually happens. This may be a disappointment to those who scoff at human rights as some kind of namby pamby pandering to snowflakes, but anyone who takes that view is revealing a disturbing ignorance about events still in living memory – when a European nation, home to great literature, music and scientific discovery, decided that it would categorise a number of its own citizens as ‘untermensch’, round them up, send them to concentration camps and kill them.
  The ECHR was the response to the horrors of the German ‘Final Solution’ to eradicate the Jewish people. It was largely drafted by British lawyers and came into force in 1953.
  The Convention guarantees specific rights and freedoms and prohibits unfair and harmful practices.
  the right to life (Article 2)
  freedom from torture (Article 3)
  freedom from slavery (Article 4)
  the right to liberty (Article 5)
  the right to a fair trial (Article 6)
  the right not to be punished for something that wasn’t against the law at the time (Article 7)
  the right to respect for family and private life (Article 8)
  freedom of thought, conscience and religion (Article 9)
  freedom of expression (Article 10)
  freedom of assembly (Article 11)
  the right to marry and start a family (Article 12)
  the right not to be discriminated against in respect of these rights (Article 14)
  the right to protection of property (Protocol 1, Article 1)
  the right to education (Protocol 1, Article 2)
  the right to participate in free elections (Protocol 1, Article 3)
  the abolition of the death penalty (Protocol 13)
  Although Article 6 and Article 8 will continue to be the rights of overarching importance in care and adoption proceedings, all of us who work in this field have an obligation to become familiar with ALL the rights and freedoms protected. I note for example the right to education and the negative impact that care proceedings often bring to a child’s continuing education, ending up in a foster placement far from a much loved school.
  As Elie Wiesel said, having survived the Holocaust – it is by denying our essential humanity that makes it easy to destroy another. Taking someone’s child away is an act that strikes against the psychological integrity of both parent and child. That child may urgently need taking away, the sooner the better; but if we persist in mechanisms of removal that deny both parents and child their fundamental human dignity, then we do great harm.
  We don’t fight to preserve the human rights of others simply for their sake – it is also for our own.
  Further reading/listening
  An interesting roundup of the day from the Adoption and Fostering Podcast.
  This entry was posted in Uncategorized and tagged adoption, ECHR, The Open Nest on October 14, 2019 by Sarah Phillimore.
  Want to Adopt? Review of new book by Helen Oakwater
  This is a post by Sarah Phillimore. Helen Oakwater is an international trainer, coach and author. Her ‘world axis tilted’ in the early 1990s when she adopted a sibling group of children, then aged 5,4, and 2 from the UK care system. I am grateful for a chance to read and review her latest book prior to its publication. My own views about ‘forced adoption’ can be found in this post.
  In March 2012 I reviewed Helen’s first book: ‘Bubble Wrapped Children – how social networking is changing the face of 21st century adoption’ . I commented then that I thought it did the book a disservice by apparently focusing on only one element of what was making closed adoption a trickier concept as electronic communications networks grow at exponential rate. In 2012 I said this:
  The book inevitably has to cover a very wide range of topics in order to allow the reader to fully understand the full potential for harm from such unexpected contact to children already traumatised by earlier life experiences. The author sets out to explain the likely nature and extent of trauma suffered by the adopted child and the ways in which the child can be helped to make sense of his or her world. She also puts herself in the shoes of the birth parents and considers how they might be thinking and feeling and how this can influence their actions.
  The book is thus an excellent resource for those coming new to the system and who require an introduction to the psychological theories around attachment and trauma. The author is able to present a number of quite complicated concepts in direct and vivid language, making good use of metaphor and diagrams to aid understanding; I found illuminating the example of child development as a river. Some rivers flow smoothly to the sea, others are turbulent with additional murky tributaries. Which river would you rather navigate?
  For me, the key issue then (and now) was Helen’s clear analysis of the difficulties ahead for children and their families given the almost inevitability that any adopted child will have suffered some kind of trauma and loss before joining their ‘forever’ family. Her second book takes this head on. It is called ‘Want to Adopt? How to prepare yourself to parent a child from the care system’. It will be published this spring.
  The book is divided into three parts. Part 1 ‘I want my own healthy baby’ – immediately, in my view a sensible recognition of what often provides the dangerous tension in debates about adoption; providing children for those who cannot have their own biological children is a very different system from that which seeks out quasi professional parents to provide reparative care for some very traumatised children. The public face of the debate often seems to slide over this very necessary distinction and offers instead just platitudinous mantras about a ‘loving warm home’ being all you need.
  Part two deals with ‘Stepping Stones’ – how to approach and deal with the necessarily intrusive assessment process that will follow into your capabilities and your motivations behind adopting. Because of the impoverished public discussion we generally have about adoption I would be very interested to know what the rates are of parents who apply to adopt and then drop out mid way or after the assessment process. Helen identifies the very pertinent and I think over over looked point that it isn’t just enough to prepare yourself for adoption – you must also prepare those around you who may make up your support team. They will also need to make efforts to understand the challenges and complexities of parenting a child with trauma.
  Part three is ‘to cross the river or not’, looking at when hope and reality collide. Chapter 13 has some useful direct quotations from various adoptive parents. Helen focuses the discussion on the inevitability of disappointment and challenge in life and the need for an honest appraisal of how we propose to deal with this.
  This is a useful and ambitious work which again presents some complicated concepts in clear and vivid language. I do find the use of quotes and diagrams useful, this is an engaging and interesting subject and it deserves a similarly engaging and interesting analysis.
  As Helen says in her introduction:
  ‘This is one of the books I wish I had read before starting my own adoption process back in the early 1990s. I wish I had had this information throughout my journey. I wish I understood the impact of trauma in my own life and its devastating effect on the three children I adopted’.
  She does not regret her decision or her children. But it is obvious that any such challenging life event is made easier to navigate with the right information, the right tools, the right people to help and guide you. My very real fear is that for far too long the debate about adoption has simply fallen between the ever widening abyss between the two polarised extremes: that children must be ‘rescued’ urgently from feckless parents where a warm and loving home awaits that will ‘fix’ them OR that any attempt to intervene to provide children with a safe and secure home is part of some murky conspiracy to line the pockets of individuals or agencies.
  We need voices like Helen’s who are prepared to tell it like it is and break down this rigid and arid binary. The sentence that really jumped out at me was ‘when hope and reality collide’. So much of human misery that I see appears to stem from the often sadly vast gulf between what we know to be true and what we would like to be true. It takes a lot of energy to keep such dissonance alive. And its wasted energy. As Maslow says, the facts ARE always friendly. There is nothing dangerous or unsatisfying about being closer to the truth. The ‘truth’ about adoption may in reality be very far removed from the sanitised fairy tale of a ‘forever family’ but it is no less an extra-ordinary journey and for some children it is absolutely what they need.
  I therefore hope Helen and others like her continue to speak and write and push for wider understanding of some of these fundamental issues. The better prepared adopted parents are, the more cognisant they are of the likely reality, the more able they will be to survive their journey which will be of immense benefit to them – and their children.
  Of course, knowledge and preparation alone cannot magically solve all the problems – some of which are very serious and lead to the de facto breakdown of families. See the website of Parents of Adopted and Traumatised Teens for further discussion. Some adopted children will need considerable support beyond their immediate family and I have serious doubts about the availability and coherence of such support – but that’s a topic for another post!
  This entry was posted in News and Events and tagged adoption, Helen Oakwater, trauma on January 6, 2019 by Sarah Phillimore.
  The Role of the Social Worker in Adoption
  Munby – in 50 years time people will be saying 'what on earth were people doing'. Things change. The way we 'do' adoption now is not the right way for all time. Need to be aware of approaches in other countries #adoption
  — Sarah Phillimorovitch (@SVPhillimore) January 18, 2018
  The social work profession has shown itself willing to grapple with the issues of concern arising out of current practices around adoption and its consequences.
  The British Association of Social Workers launched the results of its Enquiry into the role of the social worker in Adoption on January 18th 2018.
  BASW set the parameters of its enquiry in this way:
  As the professional association representing social work and social workers it is incumbent on us to ask how should our professional values and ethics guide us in this work? How should our understanding of the unique and equal worth and human rights of everyone involved in an adoption guide us in working in an area where rights are contested and perhaps in conflict?
  This enquiry will examine the role of the social worker in adoption, with a particular focus on how ethical issues and human rights legislation are understood and inform practice, and how these relate to pursuing good long-term outcomes for children and their families. It will gather evidence from families and young people involved in the adoption process, social workers and managers, family justice professionals, policy makers and academics using a variety of methods.
  The enquiry is about ensuring the best outcomes and experiences for children in care and their families, not just today, but for generations to come.
  Let the live tweeting commence! #adoption pic.twitter.com/5qNerFCGsZ
  The findings of the Enquiry were presented by Professor Brid Featherstone and Anna Gupta followed by a response from Ruth Allen of BASW and Martha Cover of Coram Chambers. A panel discussion followed including representatives from parents, adopters and adoptive children. Have a look at the hashtags #adoptionEnquiry and #adoption to see some of the discussions on Twitter that night.
  The Enquiry made 6 recommendations
  The use of adoption needs to be located and discussed in the context of wider social policies relating to poverty and inequality
  UK Governments should collect and publish data on the economic and social circumstances of families affected by adoption
  The current model of adoption should be reviewed and the potential for a more open approach considered
  There needs to be further debate about the status of adoption and its relation to other permanence options
  BASW should develop further work on the role of the social worker in adoption and human rights and the ethics involved.
  In essence, the Enquiry noted that although it was clear social workers tried to operate within an ethical framework, there was a question mark over whether or not they had the time and space to do so. Codes of Ethics that sit on a bookshelf are little use; ethics must be incorporated into a day to day value system of ‘ethical literacy’. However, many elements of the current system were operating to impede this – the ‘runaway train’ of care proceedings where adoption considered the best outcome at an early stage; the fixing of the child protection social worker as ‘here for the child’, thus losing sight of the fact that children are located in families.
  Martha Cover reflected on her 25 years of practice and found much that resonated with her. She gave probably the most well received comment of the night when asking herself if she had a magic wand – what would she do? Give social workers their job back. Give them the time, space and support to do what they want to do – which is help people.
  There were powerful contributions from birth parents, adopted parents and an adult adopted child. The issue of contact came up repeatedly. The adopted child posed the question – would it be ethical to suddenly remove from any of us in the audience, everyone we had ever known? Why do we support this sudden and stark severance of the child from his or her past? Why couldn’t she still write to her foster carers and why couldn’t they tell her they loved her?
  She worried that there was a feeling that by controlling the words that could be used to a child, this would mean the child’s thinking and understanding could be similarly controlled – which is of course a nonsense. The child is left alone and confused – along with the adults.
  The tweet below was probably the key point of the night. Adoption is a massive issue, with life long consequences for all involved. It was sobering to hear again that social workers are not supported or encouraged to attend events like this – those who do come often have to take annual leave and fund their own transport. The culture of ‘blame and shame’ around social work that has arisen over the years seems to have only entrenched more hunkering down into silo working and not being able to engage openly with the necessary debate.
  I hope that the BASW Enquiry can shine more light on these very important issues which have been obscured for far too long.
  Adopted child – the only way you can make adoption ethical is investing in what comes before it. That is the only way. #adoption
  This entry was posted in Other thoughts and tagged adoption, BASW Enquiry on January 19, 2018 by Sarah Phillimore.
  Happy Families – The conversations we are not having about adoption – Feedback from London Event
  On Saturday October 28th 2017 we gathered again, this time in London, for the ‘oral installation performance’ about adoption and the problems caused by lack of honest and open conversation about its meaning and consequences.
  The main questions Pamela and I hoped to pose were these:
  Can we make happy families?
  Can we impose identity on a child?
  Do we need to ‘rescue’ children or should we be trying to support unhappy families?
  What is really at the heart of our child protection system and adoption and why aren’t we talking about this?
  Again, I was really pleased that the audience seemed keen to talk and the conversation was lively and wide ranging. It was also great to finally meet in person some of those I have been ‘talking’ to on line for some time now.
  I hope that the conversations we started in Bristol on September 23rd and in London on October 28th can carry on elsewhere. If anyone reading this would like us to come and perform in your area, let me or Pamela know!
  Themes emerging
  A member of the audience recorded the following as those issues which attracted her attention:
  Is there another side to the issue? The talk seemed to imply that adoption is negative, but if so, what’s the alternative?
  Who is going to do the research into outcomes? How is it to be funded?
  Adoption seems to involve ideological judgement and even social engineering, and is used as a solution to problems within the care system generally. Why isn’t there conversation about all the possible consequences, good and bad, short and long-term, for everyone involved?
  Why isn’t there legal and financial help for, say, the parents of split siblings, to enable a sense of family to persist?
  Social media has raised the profile and voice of adopters, but again, it is usually the articulate middle classes who benefit. How can this be made more of a level platform?
  How successful is the assessment process at preparing adopters to be parents?
  Are support services adequate in the era of austerity, particularly in view of the needs that may arise in adopted children from different backgrounds?
  What qualifies a parent for serious intervention such as psychotherapy? There is no clinical criteria, and the distribution of these resources seems to depend on how wealthy and/or how vocal you are.
  Is the problem that research may be carried out but is unheeded by policy makers? If so, is it because of (lack of) money? Or prevailing ideology? Or lack of belief in public discourse by the general public?
  The UK concept of ‘childhood’ is adult-led, which is behind the times compared to much European thinking. Should the UK widen its perspective?I]
  Is it worth saying that you can’t prevent the death of every child deemed to be at risk, regardless of any external circumstances? There would and will always be cases like Baby P, leading to knee-jerk reactions by the media, and potentially causing as much harm as good.
  How do you counteract false narratives that are propagated by sections of the media for political ends?
  Should there be a set timeline for adoption or not? If yes, what should it be? If no, how do you set parameters?
  Is there a wider question about the way society undervalues diversity and views disadvantage?
  How can we stop money being wasted by the government on high-profile, ‘scattergun’ interventions which are often shown to have achieved nothing when they are evaluated by practitioners?
  How big a problem is trafficking of children? Can we believe the narratives in the media?
  Comments from the audience
  I have just started my MA in Social Work and this has made me aware of some disturbing elephants in the room and what sort of actions I need to think about supporting.
  I found the method of presentation simple, powerful, effective. I thought Your performance Sarah was excellent. It was gripping. I think you didn’t need to try and answer the q’s ( except the first that was framed firmly as a q to you).
  It didn’t make me think afresh about adoption as i already do but it was good to be able to ‘come out’ on those views in a public debate. My sense is that there has been a big shift in recent years to voices accepted as credible (rather than othered as disgruntled or extremists – some of course, being actually so) being able to question current adoption policy & practice.
  I think you could have done even more to engage w evidence in support of adoption & eg the idea that it was precisely because Jobs was removed & adopted that he developed capacity & opportunity to have such an impact. Tho u said u had no views the choices about what material used & ansa’s given suggested u had strong views that much is broken & dysfunctional, just not on how to achieve change & what good wld like.
  This entry was posted in News and Events and tagged adoption, Transparency on October 31, 2017 by Sarah Phillimore.
  We have to talk about adoption – Feedback from the Bristol Performance
  The first performance took place on 28th September at the Arnolfini in Bristol and the second will be taking place in London on 28th October 2017 – see here for further details and how to register for tickets.
  I have written before about the process of preparing for the performance and want to take some time to consider the feedback from the Arnolfini – did we meet our objectives of ‘having an intimate conversation’ with the audience, did we succeed in showing the audience another perspective on an area they might not have thought much about before? Were we able to empower others to take this conversation into other areas of their lives and to continue this very necessary discussion?
  I wanted to ask the following questions – because I don’t know the answers and I don’t think we are collectively having open and honest discussions about these issues:
  I was surprised how nervous I felt during the dress rehearsal – it was the first time using the actual space where the performance would take place. However, I was pleasantly surprised by how that anxiety diminished once the audience were actually there and even more pleasantly surprised by how the conversation developed afterwards.
  Now, instead of dreading the London performance, I am in fact looking forward to it and to have a further arena for discussions. Because, and rather obviously, we will never get answers to questions if we don’t ask them.
  A post shared by Sarah Phillimore (@sarah_phillimore) on Sep 22, 2017 at 12:47pm PDT
  Pamela Neil on stage during dress rehearsal
  Feedback from others
  After the performance, Pamela Neil,the artist I collaborated with to create the performance, contacted those who had attended for feedback. We are very grateful for all the thoughtful comments and will give some thought to how best to respond and incorporate any changes into the London performance.
  The following are some of questions posed and the text in bold are some of the responses.
  What did you enjoy? the chance to hear some familiar concepts developed at a pace that i could absorb differently to their normal context (when sarah and I are cross and ranting to one another about the situation)
  Are your ideas about adoption different now, following the performance? actually yes, pushed slightly further along the spectrum than i was from enthusiastic to worried
  Has the performance inspired you to engage with the problem discussed? yes. i am already engaged with it, as i suspect were most of the audience, but it was helpful to look at things from a new angle. I found the analogies helpful.
  If you could suggest one change to enhance future performances, what would it be? to let the audience know what was expected in terms of questions and participation at the end. I think only those who knew sarah felt empowered to participate. I don’t know how you could better manage that and the fact that some were quite pushy in terms of ensuring that the conversation is with new people not just those who are already part of it – other than by explicit invitation.
  One attendee echoed that last concern about how people can be empowered to join in the conversations:
  I was hoping for a conversation about the possibility of co-parenting and whether FDACs were a good model to follow but the after-show conversation felt exclusive and I didn’t say anything. I didn’t know who was speaking, what the issues were, nor the previous history between Sarah and the speakers, although I could feel the tension. I think it would have been helpful if speakers had been invited to introduce themselves and the organisations they were representing. I was watching people’s body language during the performance and saw lots of discomfort – I hoped social workers, if there were any there, would speak out at the end and perhaps they did but I left when I felt it was a private conversation that was re-hashing old arguments rather than discussing a way forward.
  We clearly need to give some thought as to how to avoid any impression that what is happening is a ‘private conversation’ – this may be an inevitable consequence of holding the first event in Bristol where the audience were more likely to know me. Hopefully a London audience can be more diverse and conversations can be less about historic tensions and more about fresh perspectives.
  However, this commentator did find the performance valuable:
  There was lots of food for thought and I wanted to thank Sarah; it is good to hear other perspectives – our focus can become too narrow. I hope it will encourage the different systems to work together more closely and explore alternative ways of looking after children perhaps based on evidence from other countries.
  I hope that the conversations can continue in London on October 28th.
  This entry was posted in News and Events and tagged adoption, communication, Pamela Neil, performance on October 1, 2017 by Sarah Phillimore.
  Seeking help for adopted children should be safe
  Living with the long term effect of abuse and neglect.
  This is a post by an adoptive mother, who shall remain anonymous.
  Adoption is a cornerstone of social policy in the UK for children living with abuse and neglect, and without legal reform, adoptive families are at high risk of having their children removed as a crisis measure when they seek help for a child’s extreme difficulties as a result of earlier abuse/neglect. This piece is written by an adoptive parent and many of the experiences described may be common to parents of children with disabilities including cognitive disabilities and mental health difficulties, who seek help in the form of respite or specialist support for challenging behaviour.
  A new round of joint targeted inspections by Ofsted, the Care Quality Commission, and probationary inspectorates into the impact of childhood neglect, will have begun this month focussing on middle age children (age 7-15) who are at risk of exploitation and/ or showing challenging behaviours (Community Care, 17th April 2017). The impact of childhood neglect may last a lifetime and it is not clear whether the inspections will focus solely on children whose needs for love and care are not being met currently and children that may have entered the Care system for reasons of neglect and abuse, and they and their carers are living with the effects of previous neglect.
  As an adoptive parent I know that neglect can occur in isolation but often involves abuse too. Concerns were raised by the Selwyn report (2014) about adoptive families accessing appropriate support for what can be extremely challenging behaviours, well beyond the bounds of normal parenting, stemming from abuse and neglect. The report identified that parents struggled to access services, especially crisis support, and that children’s disabilities are often not recognised or acknowledged in adoption, in terms of accessing post adoption support and services, even for relatively well known conditions such as autism.
  My son experienced profound early life neglect and abuse. When problems emerged in the early years of adolescence and I reported problematic behaviour that was clearly related to my son’s abuse history, it seemed removal, which neither my child or I wanted, was the only option considered by the authority. Only after a period of several years, and a number of court proceedings, did my son return home with no public law orders in place, and when this happened our reunification was not planned or supported. We found ourselves back to square one, albeit with a capped Adoption Support Fund, that we had been unable to access whilst my son was living away from home. The Pathway team say that their support, which runs out 6 months after Supervision Order discharge, is not for young people like my son, who live with their family. As a result of our family’s experiences I believe that the child protection system, particularly as it relates to adoptive families, needs to change. It seems too divisive of parent and child and totally unsupportive of parents reporting and seeking help.
  These are my thoughts.
  Reporting of problems needs to be safe
  There should be an expectation of support for parents dealing with challenging behaviour, especially in the child’s middle years when the repercussions of removal can be life altering. We cannot have a situation – which we have now – where there is fear to report the problems because the consequences of reporting may be worse than keeping silent.
  Recognition that removal of the child brings its own new set of problems
  Removal of children from their home and family, sometimes, at a great distance, may solve the problems (although this may be necessary), but more problems may be created when the focus remains almost exclusively on risk and if intervention continually comes between parent and child. Risks and benefits need to be carefully considered, with parents involved, and both short and long term outcomes need to be thought about.
  Children can be traumatised by their removal from family, feel rejected and frightened by the enormity of what is happening to them, and they can express their frustration towards those it is safest to do so with – their parents. There will be a natural move towards independence in adolescence and parents can be pushed away by their child and at the same time find themselves marginalised by the responsible authority. Identity issues come to the fore in the middle years, and in adoptions, the approaches taken can push a child or young person to seek contact with birth families. This is in itself an emotionally intense situation to deal with and the reasons for the child being taken into care may have not been addressed. Risks can be far greater than they ever were before.
  Recognition that reunification can be problematic after a child has been in care
  One recommendation of the Selwyn report was that reunification should never be ruled out – but coming together as a family can be problematic after a child is living away from home, especially after a Care Order is made, for example, if secure accommodation was needed.
  Law orders and court proceedings should not be an obstacle and barrier to family life for the child, particularly children living with neglect. Family life, and parental love can offer protective benefits and ameliorate risks associated with neglect.
  Reunifications can be especially challenging if a child has suffered corporate trauma or negligence as a result of their being in care and it is highly unlikely this will be recognised by the agencies involved.
  Infrastructure change and new models of support are urgently needed
  New models of support are required, to support the family as a whole, when middle age children exhibit challenging behaviour resulting from neglect, trauma, disability and cognitive impairment. Timely respite and periods of separation may be necessary and it should be much easier to come together again afterwards. Infrastructure and legislation must support partnership working with agencies and authorities. It is regrettable in my view that adoptive families cannot access the ASF (Adoption Support Fund) – administered by Mott MacDonald, if there is no intention to reunify on the part of the local authority – and that this fund, recently capped at £5k, is only accessible through the local authorities. Effectively this can mean that adoption support via the ASF is potentially not available to the adopted children and families that need it most.
  An approach that sees parents blamed and removes children instead of supporting families is not just a systemic failing, which sees the Rights of the Child violated, it is likely to be extremely costly. Residential care costs £3k per week on average according to a recent review by Sir Martin Narey. Parents are key to the future welfare of their children, especially so where there is previous neglect, abuse and disability, and they should be seen as a resource. Committed parents are not adversaries of our children or the state. Legal reform is needed so that we are not treated as such, and the decisions, actions and performance level of agencies can be better scrutinised, with repercussions for organisations where there has been corporate negligence.
  Finally, becoming an adoptive parent has been the best thing that I’ve done and I believe in the Care system. I want no child to enter it who does not need to be there and I want the Care system to have the capacity to meet the complex needs of the children who enter it. Without comprehensive change for children in need, at the edge of Care, including children who have been adopted, living with the long term effects of neglect, I believe that this dream of a Care system ‘fit for purpose’ will remain just that – a dream.
  This entry was posted in Adoptive Parents and tagged adoption, support on May 23, 2017 by Sarah Phillimore.
  Adoption Breakdown – Why is ‘blame’ required? Does the law need to change?
  This is a guest post from an adoptive parent who is concerned about what happens when adoptive placements break down and the local authority apply for a care order for the adoptive child. There are obvious difficulties when the legal test to satisfy a care order seems to be based on ‘blaming parents’ by focusing on the impact of parenting upon the child’s behaviour. For many adoptive children who have suffered trauma in their early lives, their behaviour is most likely to arise out of those traumatic experiences and not because of anything their adoptive parents did or did not do.
  Making the court process about ‘blaming’ such parents when an adoption very sadly breaks down, does not seem to help any one. Is it time to amend section 31 of the Children Act 1989? Rather than asking the court to look at issues of ‘significant harm’ and ‘beyond parental control’ should we add ‘complex medical or psychological needs’ as reason to justify the making of a care order – and thus put the focus on the child’s needs rather than the parents’ blame.
  Please support our petition for Parliament
  https://petition.parliament.uk/petitions/125814
  We hope you can help us raise awareness to a petition for parliament.
  We have an our adopted daughter (now 14) and unfortunately at the beginning of February we had to give her up for foster care due to her complex health needs.
  The LA are blaming us as ‘bad parents’ but we agree with their recommendations to go for family therapy and help with how to deal with difficult teenagers. We are currently in court proceedings and as we have no dispute in the end result of LA going for interim court order, envisage no problems, it is just the way we get there is what we are disputing.
  The PC report was written jointly with a student SW (who we really did not see eye to eye with) and also our AD SW, who we get on great (who is fairly new). While we understand a lot is based on opinion, they have based these on inaccurate, misquoted and even fabricated statements we made in the assessment meetings. We understand their agenda but to simply quote these inaccurate facts is simply unprofessional. We have written our objections back to them in writing and it is with their solicitors.
  The PLO meeting earlier in March, went well very accordingly to our solicitors and the LA seems almost sympathetic to our situation, so we do not understand why their reports has been written in a such a way. Maybe to actually have something for the judge to approve on their decision?
  We have another AD half-sibling, who LA have agreed can stay with us and who is not attached at all to the one who we gave up to foster carer.
  The good news is, the foster carer (who are also close by) have agreed to have our 14 AD till she is 18, they are very nurturing and AD has settled in very quickly (as she has attachment condition as well).
  I have got a petition actually published in Parliament (No blame approach to adoption) requesting for an addition to the Children’s Act part IV sec 31, which is to add “has complex medical and/or psychological reasons”.
  This is the link: Petition: https://petition.parliament.uk/petitions/125814
  PLEASE SUPPORT OUR PETITION TO PARLIAMENT
  This entry was posted in Adoptive Parents and tagged adoption, adoption disruption, section 31 Children Act 1989 on April 13, 2016 by Sarah Phillimore.
  The Judgment of the European Court against Portugal – Soares de Melo
  The dangers of ‘absolutism’ when considering the ‘interests of the child’.
  Many thanks to Clare Fenton Glynn for alerting me to this recently decided case in the European Court – only a French version of the judgment is so far available but I have run it through Google Translate and this seems a pretty good translation.
  Summary of the facts and decision
  The case involved a family with (eventually) ten children who were first involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents’ poverty and the father’s absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family’s position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted – then aged 6, 5, 3, 2 years and 7 months.
  The mother argued that the only reason to justify the adoption was the family’s poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).
  The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is ‘necessary’. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).
  The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children’s situation and take the appropriate action.
  This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:
  Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).
  The unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
  The original judgment in French.
  For further detailed commentary, see this post from the blog Strasbourg Observers.
  The English translation is set out below.
  CASE SOARES DE MELO c. PORTUGAL
  (Application No. 72850/14 )
  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
  In the case of Melo Soares c. Portugal,
  The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
  András Sajó, President,
  Vincent A. De Gaetano,
  Boštjan M. Zupančič,
  Nona Tsotsoria,
  Paulo Pinto de Albuquerque,
  Krzysztof Wojtyczek,
  Iulia Motoc Antoanella, Judges,
  and Françoise Elens-Passos, Clerk section,
  Having deliberated in private on 26 January 2016
  Delivers the following judgment voic i, adopted on that date:
  1. At the origin of the case in an application (No. 72850/14 ) against the Portuguese Republic and one national of Cape Verde, Ms. Liliana Sallete Soares de Melo ( “the applicant”), referred to the Court 5 December 2014 under Article 34 of the Convention Protection of human rights and fundamental freedoms ( “the Convention”).
  2. The applicant was represented by MC’re Almeida Neves and P. Penha Gonçalves, lawyers in Algés. The Portuguese Government ( “the Government”) were represented by their Agent, Ms MF da Graça Carvalho, Deputy Attorney General.
  3. The applicant complained of a breach of his right to respect for family life as guaranteed by Article 8 of the Convention, due to the application of institutionalization measuring seven of his children for their adoption.
  4. On 17 February 2015, pursuant to Article 39 of the Rules, the Court asked the Government to implement interim measures to allow access by the applicant to his children and restoring contact between them time ruling on the case. It also decided that the application should be given priority, pursuant to Article 41 of the Rules.
  5. On 1 April 2015 the application was communicated to the Government.
  I. THE CIRCUMSTANCES OF THE CASE
  6. The applicant was born in 1977 and lives in Algueirão-Mem Martins.
  7. She is the mother of ten children:
  – S., a girl, born in 1993,
  – E., a girl, born on 20 June 1995
  – I., a girl, born on 27 August 2001
  – M., a boy, born July 21, 2004
  – Y, a boy, born August 22, 2005
  – IR, a boy, born October 10, 2006
  – L. and S., a boy and a girl, twins, born on 18 September 2008,
  – A., a boy, born November 13, 2009, and
  – R., a girl, born November 25, 2011.
  A. On the procedure for promotion of the rights and protection of children
  1. The procedure before the child welfare committee and youth Sintra
  8. In 2005, the situation of the family was reported to the Committee of Protection of Children and Youth (Comissão de crianças e jovens proteção) ( “the CPCJ”) Sintra the ground that the applicant was unemployed for four years and that the children’s father was polygamous and often away from home.
  9. On 4 January 2007, pursuant to Article 55 of the law on the protection of children and youth at risk (lei proteção das crianças e jovens em perigo) ( “the LPCJP”), establishes the CPCJ agreement to promote the rights and child protection ( “protection of the agreement”) with the applicant and spouse concerning minors E., I., M., Y. and IR for a period of one year. This agreement had read the relevant parts in this case:
  “1. The mother will retain custody of minor E., I., M., Y. and IR She will care for them, their livelihoods and ensure their education, training, health and all other interests ;
  2. The mother will include:
  a) ensure the attendance and punctuality of children in school;
  b) ensure the hygiene and organization within the home;
  c) ensure routine medical visits or emergency;
  d) Ensure that children M., Y. and IR attending children’s structures;
  e) (…) seek gainful employment in order to guarantee its financial autonomy. It should present to the entities in charge of the support of this measure evidence about it.
  3. The father will have to ensure that the mother meets the above commitments.
  4. The father will continue to contribute financially to pay the fee structures for children and primary needs of children.
  5. (…) the parents agree to cooperate and collaborate with social workers, accepting their guidelines, recommendations, suggestions and proposals aimed at maintaining living conditions, comfort, and well – being of Defense interests of minors. ”
  10. On an unspecified date, the Agreement was approved by the court.
  11. On 22 May 2007, a social worker visited the family and found that the apartment where she lived was filthy and that the supply of running water and electricity was cut off for two months due to non-payment of bills .
  12. On 31 May 2007 the CPCJ received a new alert because of truancy of I. who was related to the fact that it had to look after her brothers and younger sisters. That same day she hired a promotion procedure and protection of the rights of children and youth at risk ( “the protection procedure”) in respect of children S., E., I., M., Y. and IR
  2. The proceedings before the Family Court of Sintra
  13. On 26 September 2007 the CPCJ sent the file to the prosecutor’s office at the Family Court of Sintra because of lack of cooperation from the applicant in the procedure of protection framework in place. The prosecutor requested the opening of a procedure for the protection of children E., I., M., Y. and IR on the grounds that the applicant does not have adequate material conditions and that she neglected the children. From that moment, the family was followed by social services team with court (Equipa de crianças e jovens do Instituto da Segurança Social cupboard ao Tribunal) (the “ECJ”) of Sintra.
  14. The applicant and her husband were heard, as well as older children and social workers who had accompanied the family. The family home visits also took place.
  15. By order of 21 December 2007, the Family Court decided the implementation of a support measure for parents against children E., I., M., Y. and IR (medida de apoio junto dos pais). This measure was extended several times.
  16. On 24 September 2008, during a visit to the family home, social services saw that the living conditions were still precarious.
  17. A social worker was sent to the applicant to teach him to manage his home, to ensure hygiene and organization of home and care for her children.
  18. On 25 June 2009 the court held a hearing pursuant to section 112 of the LPCJP. During this hearing, after taking into account the recommendations of social workers in charge of accompanying the family, the following clauses were added to the protection agreement:
  “1. [Parents should] include the IR minor in a facility for children in the next school year.
  2. The father will begin paid work and regularize the situation with social security.
  3. The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation.
  4. The spouses must prove that they actually care for their regularization in the country.
  5. Parents must provide the documents required for the study of a potential financial support.
  6. Parents must present someone in their family network and / or social may constitute effective support for the family; that person must then appear before the team and / or the court to be coresponsabilisée. ”
  Subsequently, CPCJ asked expanding the protection procedure for children L., and A. MS
  19. On 9 September 2009, social services carried out a visit to the home of the applicant.
  20. On 10 September 2009, E., who was 13 years old and who was pregnant, was received in a temporary reception center to assist women. October 24, 2009, she gave birth to a child who died December 15, 2009.
  21. As to S., who was not living with the family for some time, she returned to the family home in October 2009. Aged 16, she gave birth to a daughter December 31, 2009.
  22. In December 2009, the ECJ in charge of the case gave a progress report to the court. It stated that the applicant and his spouse had not complied with the commitments made ​​under the protection agreement and include:
  – IR that the child was still not enrolled in an institution for children;
  – That the father had not rectified the situation with social security;
  – That the mother had not proceeded with the operation of sterilization by tubal ligation she had taken any family planning because it had just given birth to another child, a year after giving birth to Twins ;
  – That his last pregnancy had not been a medical monitoring;
  – The parents were still unlawfully in the country;
  – They did not submit their individual family or social network to help them care for children.
  23. On 5 February 2010, the ECJ carried out a visit to the family home. She then gave a report to the court with the following observations:
  – Vaccinations of Mr L. and MS were outdated;
  – The father had reported receiving 366 euros (EUR) of monthly income;
  – The applicant had no income;
  – The family received 393 EUR per month family allowance;
  – The irregular situation of certain members of the family was an obstacle to obtaining social allowances;
  – The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
  24. By order of 3 March 2010, the Family Court decided the expansion of the protection procedure for children L., and A. MS (about R., enlargement was pronounced by order of 5 January 2012).
  25. In June 2010, a social worker was sent to the family to help in the care of the home. For six weeks, she went three to four times a week at the applicant’s home to teach her ​​to organize her home. It also helped him to move to another apartment.
  26. On 23 August 2010, the ECJ introduced a report that:
  – The father still had not rectified the situation with social services;
  – The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation;
  – Parents had still not presented with the documents necessary for the study of their financial situation;
  – No person had shown available to provide support to the education of children;
  – E. resumed his studies and was passed to the next level, but she continued to help her mother support the family remaining;
  – I. succeeded his school year;
  – Mr. Y. and did not attend school regularly;
  – IR and A. were not attending the nursery and stayed home.
  27. The court scheduled a hearing on 23 September 2010, but the parents are not comparurent.
  28. A new hearing was scheduled for 26 October 2010, at which only S. appeared. During the hearing, it stated that the family situation has improved.
  29. In December 2010, the ECJ gave a new report to the court, noting in particular:
  – That E. had stopped going to school;
  – That I still had not been entered in the register of civil status and does so enjoyed no social grant;
  – That Y. and IR were often dirty and they ended up showering in kindergarten;
  – There was no dialogue between the family and school;
  – The twins were placed with nurses, they obviously lacked health care and they were not properly dressed compared to the seasons;
  – Vaccinations of A. were outdated.
  30. The ECJ gave a new report on 24 June 2011. This document stated that:
  – The family had moved to another apartment whose conditions had been assessed, the applicant did not open the door of his home social workers;
  – E. went to school, but continued to look after her brothers and sisters at home;
  – I was still not registered in the register of civil status and does not have an identity document;
  – The children’s father continued to be absent.
  31. At an unspecified date, the prosecution presented its written submissions (alegações escritas) requiring the application of a measure of autonomy support (medida de apoio para a autonomia de vida) for a period of eighteen months against E., docking measure long-term institution (medida de acolhimento institucional duração longa) in respect of I., and Mr. Y ., and an investment of IR measurement, L., S., A. and R. at a person selected for adoption or in an institution for adoption (medida de confiança has selecionada pessoa para a adoção or has Instituição com vista futura adoção) on the basis of Article 35 § 1 d), f) and g) of the LPCJP.
  32. On 26 January 2012 the court held a hearing at which neither the applicant nor her husband comparurent. During this, the ECJ stated that the situation of the family was still critical since the agreement was still not respected. She noted in particular:
  – The twins were no longer in the manger-payment of hospitality expenses;
  – That the eldest child continued to look after her brothers and sisters;
  – That I was still not registered in the register of civil status.
  33. On 16 May 2012 the court held a hearing (debate judicial). During the latter, the applicant asked the court not to remove him custody of his children on the grounds that she had great affection for them, it does not mistreated and that they were all his life.
  3. The judgment of the Family Court of Lisbon North – East – Sintra of May 25, 2012
  34. On 25 May 2012, the Lisbon North Family Court of – East – Sintra (new name of the Family Court of Sintra) gave judgment. He decided the application:
  – A support measure of autonomy for an eighteen-month period with respect to E.;
  – Of the applicant support measure for a period of one year for I., under Article 39 of the LPCJP;
  – A child placement measurement M., Y., IR, L., S., A. and R. in an institution for adoption under section 38-A of LPCJP.
  Stating that the latter measure would remain in force until the adoption was imposed pursuant to Article 62-A of LPCJP the court declared the forfeiture of parental rights of the applicant and her husband vis- a-vis Mr. Y., IR, L., S., A. and R., and the prohibition of contact with the latter, pursuant to Article 1978-A of the civil code.
  To base its decision, the court took into account the reports of the CPCJ and the ECJ. The reasons for the decision read as follows:
  “(…) It appears from the facts considered proven that the father is completely absent and the mother is unable to exercise his mother function as evidenced lack of sanitation, food, health care and supervision, the use of inappropriate clothing to the seasons, neglect to include some of the children in a residential institution for children, lack of school support for these and the lack of monitoring of adequate family planning.
  In particular, it should be noted that the mother did not register her daughter I. in the register of civil status. This has the consequence that [the child] has no legal existence and can not benefit from social grants (…).
  Regarding the lack of hygiene, it has been proven that children were dirty, [they were suffering from] a lack of personal hygiene and clothing, the kindergarten had allowed and Y. IR to shower in the facility, the comrades of I. refused to sit next to her because of its unpleasant odor and the children slept on mattresses soiled with urine (…).
  Regarding the lack of hygiene of the apartment where the children lived, it appeared from various visits to the home he was dirty, the children were all sleeping in the same room, the remaining room was used to cram clothing and other products, and sometimes water and electricity were cut (…).
  As for the lack of health care for children, we must first address the lack of medical monitoring of pregnancy, and lack of necessary medical consultations and vaccinations required (…).
  Regarding the lack of supervision, it appears that the mother leaves bare son outgoing electrical sockets, windows are accessible to children, that pregnancies S. and E. occurred when they were 16 and 13 years, that I, who is 10, left alone with other children to care for them in the apartment, the door is locked (…).
  The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).
  The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.
  The applicant persisted in its refusal to sterilization by tubal ligation (…).
  Finally, as to the lack of adequate family planning, it is important to note that, contrary to the commitment made ​​on 25 June 2009 under the protection agreement, the mother has not submitted sterilization by tubal ligation and that since the original agreement to date, four children were born (…).
  Certainly the mother asked during the hearing that the children not be removed because she did not mistreated, she had tenderness for them and they were all his life, reflecting a certain affection for them.
  However, the record contains no indication that would suggest she or the children’s father are able to provide a satisfactory response in terms of availability, commitment and collaboration to accomplish the relative function.
  In addition, at least since the year 2007, the lives of children is more assured with the help of third parties (food bank, clothing donated by private individuals and institutions) than parents who do not seriously seek ways subsistence for themselves and their children.
  Because of their irregular situation, minor parents do not even benefit from the social welfare benefit.
  (…) ”
  35. On 8 June 2012, the children’s placement decision was implemented on Y, R, L, MS, A and R, then respectively aged 6 years, 5 years, 3 years, 3 years, 2 years and seven months. The measure was not implemented with respect to Mr. because it was not at the family home at the time of child removal.
  36. On 11 June 2012, the applicant and her husband appealed against the judgment before the Court of Appeal of Lisbon. Invoking the best interests of children, they asked that the execution of the judgment was suspended until the end of the procedure. They then alleged:
  – That this separation might jeopardize the well-being of children;
  – I. their daughter had meanwhile been registered at the civil status;
  – They had not considered the submissions that had been made ​​by the prosecutor and that they had therefore been able to respond;
  – They were not represented by a lawyer before the Family Court;
  – They had been informed of the date of the court hearing after having contacted the Registry by telephone;
  – There were no reasons other than their state of economic deprivation to justify the application of the protective measures they considered to be the most serious in terms of their children;
  – The measure of placement in an institution for the adoption on children M., Y., IR, L., S., A. and R. was disproportionate to what was alleged against them and due to, according to them, the absence of abuse or violence against them and the existence of strong emotional ties between the applicant and children;
  – That the assessments of the family situation were contradictory, the ground that a measure of support to the applicant had been applied in respect of two older while the most severe protection measure had been applied last seven;
  – That the applicant was forced to commit to undergo sterilization operation by tubal ligation and the fact of not having taken this commitment had been held against him to justify the protective measures applied against children.
  37. By an application dated 19 June 2012 the applicant requested the court information on the situation of children. She also informed the court that she had started a job and she had registered her daughter I. in the register of civil status of Sintra.
  38. The action brought by the applicant and spouse was not welcomed by the Family Court, which held that it was brought outside the time limit. The applicant challenged the decision of the court before the Court of Appeal of Lisbon and in the Constitutional Court. On 10 May 2013, it upheld his appeal, stating that the appeal had been brought within the time limit.
  39. On 1 July 2013, the applicant requested the court to suspend enforcement of the judgment in order to avoid breaking the family bond between her and the children on the one hand, and between them, on the other.
  40. On 11 October 2013, she asked the Court of Appeal of Lisbon to apply provisional measures in order to have access to her children.
  4. The judgments of the Court of Appeal of Lisbon
  41. At an unspecified date, the Court of Appeal of Lisbon, sitting as a single judge, delivered a judgment confirming the judgment of the court in Lisbon Family Affairs Northeast – Sintra as well as the facts found by the trial.
  As for sterilization, Lisbon Appeals Court held as follows in the part of the established facts:
  The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).
  The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation.
  We accept the facts.
  As regards the plea of failure to notify the prosecution’s submissions, the Court of Appeal considered that they had been sent to the address that the applicant had indicated to the court as part of the procedure, they were returned to the court with “unclaimed” (não atendeu) and that the applicant had not proved that they had not been brought to its attention.
  The plea of lack of abuse against children and the existence of emotional ties, the Court of Appeal held as follows:
  “(…) The absence of abuse may be the same fruit of the lack of vis-à-vis child care, and a” food affection “(carinho alimentar) minimal or no can also be neglect. The argumentation seems therefore misleading.
  That he reflected in the facts that were considered as? We fear so.
  The facts considered proven amply demonstrate that children have not benefited from their parents’ minimum conditions of dwelling [and] physical and psychological security, a lot of waste covering the soil, water and electricity is cut for two months due to default. In addition, vaccinations [children] are outdated. The mother leaves the house and lets his older daughters take care of [their] younger brothers, the latter thus being prevented from going to school. The mother has never taken steps to register in the register of civil status daughter I. It is separated from the children’s father. This is sufficient to demonstrate the moral neglect. Added to this is the fact that [the mother] does not have and does not demonstrate to have the resources to give children a dignified life, which is enough to operate [the machine] court.
  (…) Lack of parental involvement to ensure material comfort to children is in itself great violence that justifies the decision at first instance. Furthermore, it can not invoke the principle of primacy of the natural family.
  42. On 26 December 2013, the applicant challenged that decision before the panel of three judges (conferência) the Court of Appeal of Lisbon. March 27, 2014, it confirmed word for word, by the process of copying and pasting, the judgment had been rendered.
  43. On 21 April 2014 the applicant appealed on points of law to the Supreme Court. It alleged in particular:
  – She had not been aware of the submissions made ​​by the prosecution;
  – That the prosecution had requested the application of a placement order in institutions of her children and Mr. Y., that the court had meanwhile ordered the institutionalization of these for their adoption and that he had thus violated the adversarial principle;
  – That the Court of Appeal had failed to rule over the developments, namely in particular, she said, she worked since 12 June 2012 and that it had conducted the registration of her daughter I. the register of civil status;
  – She had been forced to commit to undergo sterilization by tubal ligation as part of the agreement with the social services, and that it violated his fundamental rights and breached Article 55 § 2 of the LPCJP;
  – That the fact of not keeping its commitment had been considered by the court as an aggravating circumstance and that had motivated the placement of children for adoption;
  – That the appeal court had not responded to its request for access to his children;
  – The act about which it was not proportionate to what was criticized and had been executed force with police intervention, while his appeal was still pending.
  The applicant argued further that the interpretation that was made ​​of Articles 35 § 1 g) and 55 § 2 of the LPCJP did not comply with the Constitution and that the non-mandatory representation by a lawyer statement, according it in section 103 of the LPCJP went against the right to a fair trial.
  44. By order of 22 June 2014, Lisbon Appeals Court admitted the appeal, without giving it a suspensive effect.
  45. Meanwhile, on 20 February 2014, the applicant had submitted an application to the Higher Judicial Council, in which it complained of a lack of response to all requests for access to her children and an inability to visit thereof.
  5. The judgment of the Supreme Court of May 28, 2015
  46. ​​On 28 May 2015 the Supreme Court delivered a judgment in which it dismissed the applicant’s appeal on the basis of the facts established at trial and confirmed by the Court of Appeal of Lisbon. As regards the plea of failure to notify the prosecutor’s submissions in the proceedings before the Family Court, it held:
  – That the applicant had not proved not to have actually received the letter from the court containing the requisitions;
  – It had presented February 28, 2012 a request to inspect the file of the proceedings that the court had granted the application and that, consequently, the applicant was well aware of requisitions by that route;
  – The date of the hearing notification letter was sent to the applicant’s address was on file and had been returned marked “unclaimed”;
  – That the record that a court clerk had communicated by telephone the date of the hearing to the applicant and that it had then requested its postponement, which was refused.
  The Supreme Court held further that the Appeal Court had not mentioned in its judgment of the commitment by the applicant to undergo a sterilization operation, it was not based on the -ci and it was therefore not appropriate to refer to it and that the new elements mentioned by the applicant in the court of appeal had been taken into consideration by that court in its judgment. As for sterilization, the Supreme Court held as follows in the part of established facts:
  47. As to the application of the institutionalization of children in placement measure for adoption, the Supreme Court observed that it could not rule on the compatibility of the measure with the law and not on whether or appropriateness thereof. It found that the facts had been established were considered sufficient and that therefore the legal provisions at issue, namely Article 1978 of the Civil Code and Article 34 of the LPCJP, were not violated.
  As regards the complaint relating to a lack of the appeal court response to requests for access to his children made by the applicant, the Supreme Court held that:
  “(…) The regime demanded proves visits and found inconsistent with the contested decision and in conflict with it, [that decision] providing institutional care for adoption, with disqualification parental authority, [that disqualification is] also in line with the provisions of Article 1978-A of the civil code (…) ”
  “Therefore, in view of the established material reality, there is a particularly dangerous situation when the biological family is unstructured, that the father is absent from the lives of children and the mother demonstrated a great emotional instability, unstable employment and obvious negligence in relation to care due to minor children on hygiene, health, food, housing and education. Accordingly, the decision of the courts in the light of Article 1978 § 1 of the Civil Code and Article 35 § 1 g) LPCJP, to opt for the institutionalization of measures to adopt and , consequently, for the loss of parental authority over minor children, under Article 1978-A of the civil code, is not illegal. ”
  48. On 16 June 2015 the applicant lodged a complaint before the panel of three judges of the Supreme Court. She requested a review ( reforma ) of the judgment, citing several grounds for revocation and accusing the Supreme Court for not having ruled on the question of the lack of notification of the prosecutor’s submissions and the date of hearing before the family court.
  49. In a judgment of 9 July 2015 the panel of three judges of the Supreme Court dismissed the applicant’s appeal on the grounds that the notification of the date of the hearing had been made to the applicant’s address that appeared in the record, and that the applicant had, in fact, access to submissions and evidence which appeared to support them since it had consulted the case file.
  50. The applicant challenged the judgment in the context of an appeal for annulment by which it contested consulting the case file. The Supreme Court rejected the claims by its judgment of 17 September 2015.
  6. The proceedings before the Constitutional Court
  51. Subsequently, on 5 October 2015 the applicant lodged an appeal with the Constitutional Court, arguing the unconstitutionality of several provisions of the LPCJP and Article 1978 of the Civil Code. She complained in particular:
  – The interpretation by the courts of Articles 35 § 1 g) and 38-A of LPCJP, who would have considered that the care order for the adoption could be applied even if the parent had not read the prosecution’s submissions requesting such action and that the notification could be presumed;
  – The interpretation by the courts of Articles 35 § 1 d) and g), 45 and 55 § 2 of the LPCJP that would have felt that the non-compliance with the commitment by the applicant to undergo sterilization could be a aggravating circumstance and motivate the application of institutionalization measure for adoption;
  – The non-mandatory representation by a lawyer during the proceedings before the courts of first instance, which was laid down by Article 103 of the LPCJP.
  52. According to the latest information received, which date back to the 1 st December 2015, the proceedings before the Constitutional Court is still pending.
  B. On the intervention of the Court under Article 39 of the Rules
  53. Meanwhile, by a fax of 19 November 2014, the applicant had, on the basis of Article 39 of the Regulation, referred to the Court a request to obtain visiting rights to her children who had been placed in care for their adoption.
  54. On 17 February 2015, the Court invited the Portuguese Government, under that provision, to adopt interim measures to allow access by the applicant to his children and the restoration of contacts between them for the duration of the proceedings before it.
  55. On 5 March 2015, the Family Court had authorized the applicant to resume contact with his children.
  56. Since 15 March 2015, the applicant makes weekly visits to his children in the three institutions located in Sintra, Cascais and Alverca, where they have been placed.
  II. THE MATERIALS AND THE INTERNATIONAL LAW RELEVANT
  A. The concluding observations of the UN Child Rights Committee concerning the third and fourth periodic reports of Portugal
  57. Pursuant to Article 44 of the Convention on the Rights of the Child, the UN Child Rights Committee considered the third and fourth periodic reports of Portugal, submitted in one document (CRC / C / PRT / 3-4) at its 1860 th and 1861 th meetings (see CRC / C / SR.1860 and 1861), held on 22 January 2014, and adopted at its 1875 th meeting (CRC / C / SR .1875), held on 31 January 2014, its concluding observations on those reports, the relevant parties in this case are as follows:
  “39. While welcoming the existence of a wide range of social assistance programs, including that of emergency social assistance program, the Committee is concerned that many families, especially those found in poverty, do not receive appropriate assistance to fulfill their responsibilities as parents raising children, especially in terms of financial, educational early childhood accessible and youth protection children. The Committee is particularly concerned about the situation of children in families affected by the current economic crisis, who need social measures of positive discrimination, especially single-parent families, families with disabled children and families living in persistent poverty.
  40. The Committee recommends that the State party strengthen its efforts to provide appropriate assistance to parents and legal guardians to enable them to fulfill their responsibilities of parents raising children, especially when they are in situations of poverty. It also recommends that the State party ensure that no group of children lives below the poverty line. The Committee further recommends that the State party strengthen the system of family benefits and family allowances as well as other services such as counseling and family counseling, as well as child care and early childhood education, to provide support to the families of two or more children, families with disabled children and families living in persistent poverty, according to the guidance document of the European Commission concerning custody and childrearing.
  41. The Committee welcomes the adoption of the law on the protection of children and youth at risk, the steps taken to reunite families and efforts to promote the reduction of institutionalization, in particular by increasing the number of children living in group homes. However, the Committee expresses concern:
  a) small number of reception and placement of children in families of families, and facing the widespread use yet to institutionalization, especially the younger children;
  42. The Committee recommends that the State party to implement the following measures – after taking into account the Guidelines for the Alternative Care of Children annexed to resolution 64/142 of 18 December 2009 of the Assembly UN General:
  a) Increase support to biological families to avoid investments in alternative structures; strengthen the provisions relating to the protection within the family, such as the extended family, placement in family systems and investment institutions; take all necessary measures to ensure that alternative care for young children, especially children under 3 years, is part of a family setting;
  57. The Committee welcomes the decision of the State party to increase allowances and family benefits for vulnerable households with children, that is to say, single-parent families, families with two children or more, families with disabled children and families living in persistent poverty; it welcomes the expansion of the meal program in schools and the implementation of emergency social program in 2011 in order to minimize the effects of the financial crisis on vulnerable households. The Committee is concerned about the high level of poverty among children and the implementation of austerity measures that have adverse effects on families, which greatly increases the risk of exposing children to poverty and affect their enjoyment of many rights under the Convention, including the rights to health, education and social protection.
  58. The Committee urges the State party to intensify efforts to address both the immediate and the long term, the high level of child poverty, including through public policy and a national plan the fight against child poverty. These policies and this plan should consist of the establishment of a coherent framework consisting of priority measures to fight against the exclusion of children with specific and measurable objectives with clear indicators and deadlines, and enjoying a sufficient economic and financial support.
  B. Domestic law
  1. The Civil Code
  58. The relevant provisions in the case of the Civil Code in force at the relevant time, read as follows:
  Article 1978
  Placement for adoption
  “1. For the purposes of an adoption, the court may place the minor in a couple, in one person or in an institution where the affective bonds particular to filiation do not exist or are seriously compromised for the following reasons:
  d) when the parents, by act or omission, or because of an obvious disability due to mental illness put at grave risk the safety, health, training, education or development of the minor;
  2. As part of the review of the situations listed in the preceding paragraph, the court must consider first the rights and interests of the minor.
  5. The judicial placement of a minor can be requested by the public prosecutor, the social security center in the minor area of ​​residence, the person to whom the child was entrusted administratively, the director of the public institution or direction the private host institution.
  Article 1978-A
  effect (…) the extent (…) investment in a person selected for adoption or in an institution for the adoption
  “Once (…) that the measure promotion and protection with investment in a person selected for adoption or in an institution for the adoption has been ordered, the parents are deprived of their parental authority. ”
  2. The law on the protection of children and young people at risk
  59. At the material time, the LPCJP, governed by Law 147/99 of 1 st September 1999 in the version following the Law 31/2003 of 22 August 2003, established the regime and the promotion procedure for the rights and protection children and youth at risk ( processo de Promoção of direitos e proteção das crianças e jovens em perigo ).
  60. According to this law, he meant by “child” a person under the age of 18 and “young” a person aged under 21 who requested the continuation of the intervention that was implemented before age 18 (Article 5 a)). Measures to promote rights and child protection were adopted by child protection committees or youth at risk or the courts (Article 5 e)). They aimed to remove children and young people to the danger they faced, to provide conditions for them to access their security, health care, education or training, promoting their development and allow them to physical and psychological rehabilitation in relation to any form of abuse or exploitation (Article 34).
  61. The relevant parties in this case that Act read as follows:
  “1. The intervention of commissions to protect children and young people ( comissões of proteção das crianças e jovens ) require the explicit agreement of the parents, legal guardian or person having custody of fact, the case.
  “1. The promotion and protection measures are:
  a) support for parents;
  b) support to another family member;
  c) placement in a person with a good reputation ( Idónea );
  d) support for autonomy ( apoio para a vida autonomia );
  e) foster care;
  f) institutional care;
  g) placement with a person selected for adoption or in an institution for adoption.
  2. The promotion and protection measures are implemented, depending on their nature, open ( meio natural de vida ) or investment plan and may be decided provisionally.
  Application jurisdiction measures to promote
  and protect
  “The application of measures to promote the rights and protection of the exclusive jurisdiction of protection commissions and courts; (…) ”
  Article 38-A
  Placement in a person selected for adoption or in an institution for the adoption
  “The measure of placement in a person selected for adoption or in an institution for the adoption, applicable when one of the situations specified in Article 1978 of the Civil Code is verified, consists of:
  a) placement of the child or young person under the care of a candidate selected to the adoption by the competent social security body; or
  b) placing the child or young person under the care of an institution for adoption. ”
  “The parent support measure is to provide for the child or young psychoeducational and social support and, if necessary, financial assistance. ”
  “1. When the measure provided for in Article 39 is applied (…), parents (…) can benefit from a training program aimed at improving parenting duties.
  Support for autonomy
  “1. The autonomy support measure is to bring directly to the young age of 15 years financial and psycho-social support and, in particular through training programs, to offer him terms that will enable to live alone and to gradually acquire a life of autonomy.
  (…). ”
  institution Home Concept
  “1. The welcome in institutions is a measure of placing the child or youth in a structure with facilities or a permanent host, and a team of workers that can guarantee [ the child or young] care consistent with their needs and bring [to it] conditions that promote their education, well-being and full development.
  Promotion and Protection Agreement
  “1. The promotion and protection agreement must include:
  a) identifying the member protection commission or the [social worker] responsible for managing the project;
  b) the period for which it is established and where it needs to be revised;
  c) the declarations of consent or no objection necessary.
  2. Shall not be established clauses impose undue obligations or imposing limitations to the operation of family life beyond the necessary steps to effectively rule out the danger factors. ”
  Promotion and Protection Agreement on measures in open
  “1. The following shall in particular be included in the promotion and protection agreement establishing the measures to be implemented in an open environment:
  a) feeding, hygiene and health care and comfort to provide the child or young by parents (…);
  b) identification of the person responsible for the child or youth for the period during which it can not or should not be in the company or under the supervision of parents or the person to whom it was given;
  c) school planning, vocational training, work and free time occupation;
  d) the planning of health care, including medical consultations and child guidance, and the commitment to comply with the established guidelines and guidance;
  e) financial assistance to be awarded, its terms and duration, as well as the entity responsible for its issue and the associated conditions.
  placement measurement in a person selected for adoption
  or in an institution for the adoption
  “1. The measure of placement in a person selected for adoption or in an institution for the adoption lasts until the adoption is granted and is not subject to review.
  2. (…) the natural family does not have the access.
  Hearing of the holders of parental authority
  “The parents, the legal representative and persons with de facto custody of the child or young person is compulsorily heard on the situation which led to the introduction and implementation, revision or termination, of the promotion and protection. ”
  “The judicial process of promoting the rights and protection of children and young people in danger, now designated as judicial proceedings promotion and protection, is the voluntary jurisdiction. ”
  “1. The parents, legal representative or the person having de facto custody of the child or young person may at any stage of the proceedings, to counsel or request the appointment of a lawyer for representation or that of the child or youth.
  2. A lawyer must be appointed to represent the child or young when the interests [of it] and those of his parents are conflicting and, also, when the child or young person who seeks the sufficient maturity with the court.
  4. At the hearing ( debate judicial ) recourse to a lawyer or the appointment of a lawyer is required to assist the child or youth. ”
  With the entry into force, scheduled for 8 December 2015, of the law 142/2015 of 8 September 2015, paragraph 4 of Article 103 shall read as follows:
  “4. At the hearing, recourse to a lawyer or the appointment of counsel to assist parents is mandatory in cases concerning the extent provided in paragraph g) of paragraph 1 of Article 35, and is mandatory in all cases to assist the child or youth. ”
  “1. The child or youth, his parents, his legal representative or any person having de facto custody have the right to request the pleadings ( diligencias ) and produce evidence.
  2. Written comments may be submitted during the hearing and the adversarial guaranteed.
  3. The contradiction regarding the facts and the applicable measurement is always guaranteed in all phases of the proceedings, including during the conciliation aims to reach an agreement, and as part of the hearing where as provided in paragraph g) of paragraph 1 of Article 35 is applicable. ”
  Phases of the procedure
  “1. The legal process of promotion and protection includes the instruction phase, hearing, decision and execution of the measure.
  instruction Closure
  “After hearing the public prosecutor, the court declares the instruction and close:
  c) it clearly appears unlikely to reach a conciliation, he ordered the continuation of the procedure for a hearing and proceed to notifications pursuant to Article 114 § 1. ”
  negotiated Decision ( Decisão negociada )
  “The judge summons to the hearing ( conferência ), for the purpose of obtaining a promotion and protection agreement, the Public Prosecutor, the parents, the legal representative or the person who has de facto custody [of the minor ], the child or young person aged over 12 years, and persons and representatives of entities that it believes the presence and consent to the relevant agreement. ”
  Hearing ( debate judicial)
  “1. If it has not been possible to achieve promotion and protection agreement (…), the judge makes a notification to the Public Prosecutor, the parents, the legal representative or the person who guard [the minor], the child or young person aged over 12 years so that interested parties present in writing, within ten days their comments if they wish and (…) their means evidence.
  2. The public prosecutor shall submit written comments and evidence if it considers the measure to be applied is that set out in paragraph g) of paragraph 1 of Article 35.
  3. After receiving comments and evidence, the judge will set a hearing date and ordered that notification is made to appear to people.
  4. With the notification of the hearing date is made available to parents, legal guardian or person having custody of [the minor] the prosecution submissions and knowledge of it and the memories the evidence requested. ”
  3. The Code of Civil Procedure
  62. Article 1409 of the Civil Procedure Code, in force at the time, had the relevant parts in this case:
  4. In voluntary jurisdiction procedures, representation by a lawyer is not mandatory in the appeal phase. ”
  I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
  63. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of an infringement of her right to respect for family life due to the application of a placement order for the adoption to respect of his seven younger children and the ban for it to have access to them from the court judgment to the Lisbon family Affairs Northeast – Sintra on 25 May 2012. on that point, it states that introduced, unsuccessfully, various applications and appeals. It also complains that the courts based their decisions on the fact that it had not met its commitments to adequate family planning.
  64. The Government rejected the applicant’s argument.
  65. Mistress of the legal characterization of the facts of the case, the Court considers it appropriate to consider the complaints raised by the applicant in terms of the single article 8 of the Convention, which requires that the decision-making process leading to measures of interference is fair and respects, as it should be, the interests protected by that provision ( Kutzner v. Germany , n o 46544/99 , § 56, ECHR 2002 – I, . Kříž v Czech Republic . (Dec.) n o 26634/03 , 29 November 2005, and Pontes v. Portugal , n o 19554/09 , § 67, 10 April 2012).
  Article 8 of the Convention provides in relevant part in this case:
  “1. Everyone has the right to respect for his life (…) family (…).
  2. There can be no interference by a public authority with the exercise of this right except such as this interference is provided for by law and is a measure in a democratic society, is necessary (.. .) for the protection of health or morals, or the protection of the rights and freedoms of others. ”
  A. Admissibility
  1. Arguments of the parties
  66. The Government raised a plea of ​​premature nature of the application on the ground that the applicant submitted after the judgment of the Supreme Court of 28 May 2015, an appeal to the Constitutional Court which is still pending. He believes that if the Constitutional Court granted the applicant’s request on the various normative unconstitutionality allegations raised by it in its appeal in memory, the case will be sent back to trial and that therefore the Supreme Court is not yet final.
  67. The applicant argues that the appeal of unconstitutionality before the Constitutional Court can not be seen as an effective remedy to exercise under Article 35 § 1 of the Convention. She claims to have submitted his appeal to the Constitutional Court to prevent the investment decision of their children for adoption becomes final. In addition, indicating that there is the Constitutional Court no recourse against violations of fundamental rights equivalent appeal by amparo , it argues that this court can not rule on the character consistent with the Constitution of a standard or its interpretation by a lower court and can not therefore rule on the merits of a case has already been decided by the Supreme Court. It adds that even if the Constitutional Court gives a favorable response to its appeal, this court is not bound to order a referral of the case for a new decision on the merits. Finally, the applicant states that the withdrawal of his children was implemented June 8, 2012, that the violation denounced by it is already effective and that, therefore, the request is not premature.
  2. Findings of the Court
  68. The Court recalls that Article 35 § 1 of the Convention, it may not matter after the exhaustion of domestic remedies. Every applicant must have given the domestic courts the opportunity that this provision was intended to be afforded to Contracting States in principle: prevent or redress the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Moreira Barbosa v. Portugal (dec.), n o 65681/01 , ECHR 2004-V, and Cardot v. France , 19 March 1991, § 36, series A n o 200). This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that the domestic system provides an effective remedy in respect of the alleged violation (see, for example, Selmouni v. France [GC], n o 25803/94 , § 74, ECHR 1999-V).
  69. The Court further recalls that Article 35 of the Convention provides that only the exhaustion of remedies both related to the breaches alleged available and sufficient. These remedies should exist in a sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many others, Vernillo v. France , 20 February 1991 , § 27, series A n o 198, Dalia v. France , 19 February 1998, § 38, Reports of judgments and decisions 1998 – I, and . Vučković and others v Serbia (preliminary objection) [GC], no bones 17153 / 11 and 29, § 71, 25 my rs 2014).
  70. The Court must apply the rule of exhaustion of domestic remedies, taking due account of the context: the safeguard of human rights that the Contracting Parties have agreed to set. It has recognized that Article 35 § 1 of the Convention must be applied with flexibility and without excessive formalism. It has further recognized that the rule does not accommodate an automatic application and is not an absolute one; to monitor compliance, it is essential to have regard to the circumstances of the case. This means that the Court must take realistic account not only of the remedies provided in theory in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the applicant’s personal situation ( Akdivar and others v. Turkey, 16 September 1996, § 69, Reports 1996 – IV).
  71. The answer to the question of whether the individual complaint to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the peculiarities of the legal system of the respondent State and the extent of skills of its constitutional jurisdiction. Thus, in a state where these skills are limited to a review of the constitutionality and the level of compatibility of legal norms, an appeal to the Constitutional Court is to exercise that where the applicant challenges a law or regulation as in itself contrary to the Convention ( Grišankova and Grišankovs v. Latvia (dec), n. o 36117/02 , ECHR 2003 – II). However, this remedy is not effective when the applicant complains that an error in the interpretation or application of a law or regulation which in itself is not unconstitutional ( Szott Medyńska-c . Poland (dec.), n o 47414/99 , 9 October 2003, and Smirnov v. Russia (dec.), n o 14085/04 , ECHR, 6 July 2006).
  72. Turning to the present case, the Court first notes that it is undisputed that the constitutional complaint in Portugal shall relate to one “normative” provision and not a judicial decision ( Colaço Mestre and SIC – Sociedade Independente de Comunicação SA c. Portugal (dec.), No bone 11182/03 and 11319/03 , 18 October 2005).
  73. It then observes that the applicant raised before the Constitutional Court several pleas of unconstitutionality of the interpretation given by the courts of certain provisions of LPCJP (paragraph 51 above) to denounce the disproportionate nature in his eyes the institutionalization of best of its children for adoption. Since this part of the constitutional complaint concerns the judicial decision itself and not on a normative unconstitutionality, it appears doomed.
  74. As regards the plea alleging an illegal character in the Constitution of the absence of legal representation obligation, before the courts of first instance, parents of a child subject to a protection proceedings, the Court considers that it can not speculate on the admissibility and the potential outcome of this part of the appeal. Moreover, even assuming that the applicant obtains a favorable decision and that the case be sent back to trial, he must still submit his complaints of potential harm resulting from the contested measure, within the framework a civil action against the State for the purpose of obtaining compensation. Moreover, the Court considers that it can not require the applicant to wait longer that the Constitutional Court’s decision, since the protective measure was executed on 8 June 2012, there is more three years already (see, mutatis mutandis , Guillemin v. France , 21 February 1997, § 50, Series 1997 – I).
  75. In view of the foregoing, the Court considers it appropriate to reject the Government’s objection.
  76. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and it also faces any other ground of inadmissibility, the Court declares it admissible.
  B. Merits
  a) The applicant
  77. The applicant alleges that the measure of placement for adoption, applied in respect of seven of his children and performed with regard to six of them, constituted a disproportionate interference with his right to respect for family life. Contesting the facts considered proven by the domestic courts, she argues that her children were exposed to any physical or psychological violence and that their placement was based solely on his social precarious situations. She complains about the application of different measures vis-à-vis her children and says not understand why the support measure for parents has been applied in respect of her daughter I. whereas the road to adoption , harder in his eyes, was chosen for its youngest children.
  78. Complaining that less drastic measures with regard to its youngest children were not considered, the applicant claims not to have received adequate social assistance from social services before the institutionalization of its children for adoption. It refers, as evidence, to the various reports on which the domestic courts have relied and believes they show that social services were deaf to her distress and she continued to struggle alone to provide for his family. She denies having ceased to work with social services, stating that it has received no visits from them the year before the application of the investment measure.
  79. The applicant also complained of being pushed to agree to include in the agreement with the social services a clause under which it undertook to undergo sterilization operation while it believes such a move went against his culture and his Muslim religion. She says she accepted the inclusion of this clause because of her emotional state – in her brittle – at the material and to stop the relentless social services to which it was confronted. She is convinced that the withdrawal of his children was decided to punish her for not having been sterilized and have even given birth to four children. It states that it appears from the judgment of the Family Court in which it had stressed that it was ultimately not sterilized despite its commitment to undergo such an operation.
  80. Next, the applicant criticizes the forfeiture of parental authority and the prohibition of contact with and between his children in three different foster homes under the judgment of the Family Court. Indicating that the decision was not yet final and that the courts had recognized the absence of physical violence and the existence of emotional ties with her children, she argues that these restrictions have made it for additional punishment and that the ‘were removed from her children. In the alternative, she complained of not having received any response from the authorities about the various requests made by it to have access to her children. She indicated that her youngest was six months old when he was removed and the immediate implementation of the measure and the absolute prohibition of contact were thus prevented the establishment of any link with it. She complains of not being able to see her children since the indication of provisional measures by the Court, ordered under Rule 39. It adds, in the alternative, as reports show that children responded enthusiastically to restoring contact with her.
  81. At the procedural level, the applicant complains of not being able to participate effectively in the proceedings.
  First, it states that it was represented by counsel until May 25, 2012, the judgment of the Family Court, and it was not before, and that in despite it believes the complexity of the procedure and the severity of its issues. It believes that it has therefore not been able to defend its interests, since it would have been possible to present its case, and the court did not allow effective participation in since the procedure would not have told her what was happening. On this point, she alleges, for example she could not attend the hearing various witnesses during the judicial debate on 16 May 2012.
  Then she complained that the prosecution’s charges were not brought to its notice, which would not have allowed him to understand the stakes in the proceedings and, in particular, the investment demand from children for adoption envisaged in the court order of January 26, 2012. in addition, it alleges that the family court to have applied the placement order against her seven younger children, namely M. Y, R, L., S., A. and R. whereas this measure had, she said, was requested by the prosecution vis-à-vis the last five.
  Finally, the appellant criticizes the Family Court having relied solely on the reports of social services and to have ordered no expertise enabling it to assess its ability to exercise their parenting and assess the maturity and affective and emotional balance of his children. It further alleges that the evidence it submitted in support of its appeal before the court of appeal were not considered, that court, as the Supreme Court, being limited his statements to confirm the judgment of the family court without a critical examination of the facts. She claims to have suffered the procedure without ever having been able to bring any evidence in his defense.
  82. Furthermore, the applicant requests the Court to order the continued visits to his children and between them.
  b) The Government
  83. The Government recognizes that the placement of children of the applicant institution for adoption was an interference with the right of the latter to respect for family life. It is, however, that the interference was justified having regard to the best interests of children on the grounds that they were in danger because of negligence on the applicant and her husband, and that the situation would have known no improvement despite the application of a measure of support to parents for several years.
  84. As regards the necessity of the measure, the Government maintained that the father was absent from the home and that the applicant had shown great neglect of her children. He said that the family had followed since 2005 by social services and a more sustained since the agreement with the applicant in 2007, which led to the application of a support measure against relatives children. He added that this has brought social services to perform close monitoring of the family including through meetings and visits at home and at school. It states that, from 2010, the applicant ceased to cooperate with social services and has made it impossible to apply the measure of current assistance. He says the child institutionalization was then considered as a solution for the younger children and that this measure was applied only after other measures failed. He says, to base its judgment, the Family Court took into account the competing interests at stake and that it relied on the testimony of Social Workers, the applicant and spouse and the eldest daughter of torque, and the different social relations. It specifies that these reports had helped raise the following: a lack of health and safety at the family home; lack of medical care for children; a truancy of children; food and clothing deficiencies; administrative negligence, for example the lack of registration of one of the daughters of the applicant in the register of civil status and the irregular situation of the applicant in the country.
  The Government also states that the applicant had not designated a person of the family circle may constitute a support for the family.
  85. As regards the sterilization operation, the Government maintained that the applicant had deliberately engaged in 2009 to do such an operation within the framework of the promotion and protection agreement. He added that the aim was only to allow monitoring of a family planning program by the applicant and not to force it to a specific contraceptive method. In addition, it states that the courts had not taken this into account in their decision and that it therefore had no influence in the procedure: in this regard, he said that the Family Court noted in its judgment the lack of monitoring of family planning and not a specific method of contraception.
  86. The Government concluded that the measure was appropriate, proportionate, and therefore necessary in a democratic society, and therefore did not violate Article 8 § 2 of the Convention. He believes it also notes the national margin of appreciation, as the authorities are better placed to determine the solution to be applied in relation to a concrete situation and that, consequently, the Court can not revisit the facts were considered as internally.
  87. As regards the impossibility for the applicant to have access to her children, the Government explains that this follows from the very measure of placement for adoption, pursuant to Article 1978-A the civil code and Article 62-A of LPCJ.
  a) General principles
  88. The Court recalls that, for a parent and child of each constitutes a fundamental element of family life ( Kutzner , cited above, § 58): domestic measures hindering such constitute interference with the right protected by the Article 8 of the Convention ( K. and T. v. Finland [GC], n o 25702/94 , § 151, ECHR 2001-VII). Such interference breaches the aforementioned Article 8 unless it is “prescribed by law”, pursues one or more legitimate aims under the second paragraph of that provision and was “necessary in a democratic society” for the ( Gnahoré c. France , n o 40031/98 , § 50, ECHR 2000 IX, and Pontes , cited above, § 74). The notion of “necessity” implies that the interference on a pressing social need and, in particular, proportionate to the legitimate aim ( Couillard Maugery v. France , n o 64796/01 , § 237, 1 st July 2004). In assessing the “necessity” of the measure “in a democratic society” and therefore should be analyzed in the light of the whole case, the reasons adduced in support of it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.
  89. The fact that a child could be placed in a more beneficial environment for his education can not in itself justify the strength of removal from the care of their biological parents; such an interference with the right of parents, under Article 8 of the Convention to enjoy a family life with their child still has to be “necessary” due to other circumstances ( K. and T. , supra , § 173, and Kutzner , cited above, § 69). Moreover, Article 8 of the Convention imposes on the state of positive obligations inherent in effective “respect” for family life. Thus, where the existence of a family relationship is established, the State must in principle act to enable that tie to be developed and take measures to meet the parent and the child concerned ( Kutzner , cited above, § 61).
  90. In consideration of the necessity of the interference, the Court will take into account that the design that has been the timeliness of intervention by public authorities in the care of a child varies from State to another depending on factors such as traditions relating to the role of the family and state intervention in family affairs, as well as the resources that can be devoted to measures public in this particular field. Still, the best interests of the child in each case takes decisive. We must also not lose sight of that national authorities benefit of direct contact with all concerned ( Olsson v. Sweden (n o 2) , 27 November 1992, § 90, Series A n o 250), often at the when investment measures are envisaged or immediately after their implementation. It follows from these considerations that the Court is not its task to replace the domestic authorities in the exercise of their regulatory responsibilities in matters of child care by the public authority and the rights of parents whose children were well placed, but to control the angle of the Convention the decisions they delivered in the exercise of their discretion ( Hokkanen v. Finland , 23 September 1994, § 55, series A n o 299 – A, Johansen v. Norway , 7 August 1996, § 64, Reports 1996 – III, and K. and T. , cited above, § 154).
  91. The Court also recalls that although the border between the positive obligations and negative obligations of the State under Article 8 of the Convention does not lend itself to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, regard must be had to the fair balance between the competing interests – those of the child, those of the parents and those of public order ( . Maumousseau and Washington v France , n o 39388 / 05 , § 62, ECHR 2007-XIII) – taking into account, however, that the child’s best interests must be the paramount consideration (see, to that effect, Gnahoré , cited above, § 59) which, according to its nature and seriousness, override those of the parents ( Sahin v. Germany [GC], n o 30943/96 , § 66, ECHR 2003 – VIII). In addition, a family breakup is a very serious interference; a measure leading to this situation should therefore be based on considerations inspired by the interests of the child and of a weight and a sufficient strength ( Scozzari and Giunta v. Italy [GC], no bones 39221/98 and 41963 / 98 , § 148, ECHR 2000-VIII). The remoteness of the family context child is an extreme measure to which one should be used as a last resort. For a measure of this type is justified, it must meet in order to protect the child faces an immediate danger ( Neulinger and Shuruk v. Switzerland [GC], n o 41615/07 , § 136, ECHR 2010).
  92. It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with these positive obligations under Article 8 of the Convention and the Court whether, in application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, taking particular account of the best interests of the child (see, mutatis mutandis , Neulinger and Shuruk , § 141, ECHR 2010, and KAB v. Spain , n o 59819/08 , § 115, April 10, 2012,).
  93. The Court reiterates that, if the authorities have considerable latitude to assess in particular the need to take charge of a child, it must nevertheless be satisfied that in the case in question, there were circumstances warranting the removal of the child. It is incumbent on the respondent State to establish that the authorities before putting such measures into effect, carefully assessed the impact that would have on the parents and the child measuring envisaged adoption and other solutions that child care ( K. and T. , supra, § 166, and Kutzner , cited above, § 67). The Court also exerts tighter control on additional restrictions, such as those made ​​by the authorities of the parents visiting rights, and safeguards to ensure the effective protection of the rights of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child ( Gnahoré , § 54, and Sahin , cited above, § 65). On one hand, it is certain that guarantee children a development in a healthy environment responsibility of the child’s interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to health and development of children ( Sahin , cited above, § 66). On the other hand, it is clear that it is as much in the child’s interest that the relationship between he and his family are kept, except in cases where it was particularly indignant: break link back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , § 59, and Pontes , cited above, § 85).
  94. If Article 8 of the Convention contains no explicit procedural requirements, the decision process related to measures of interference must be fair and proper to respect the interests protected by that provision. It should therefore be determined, depending on the circumstances of each case including the seriousness of the action, if the parents have been involved in the decision process, as a whole, a fairly important role to give the required protection in their interests. If not, there is a failure to respect their family life and the interference resulting from the decision can not “necessary” under Article 8 ( W. v. United Kingdom , 8 July 1987 § 64, series A n o 121, and Assunção Chaves v. Portugal , n o 61226/08 , §§ 82-84, 31 January 2012).
  b) Application of these principles in the present case
  95. In the present case, the Court notes that the parties do not dispute that the contested measure investment – orders against seven of his children, M., Y., IR, L., MS, and A. R., and executed from the last six – the loss of parental authority and the prohibition of any visit, decided by the judgment of the family court of Lisbon Northeast – Sintra on 25 May 2012 constituted “interferences” in the exercise of the right of the applicant to respect for his family life. The Court sees no reason to conclude otherwise.
  96. The Court further observes that the parties agree that the interference in question had a legal basis. It also notes that the above measures at issue were based on Article 35 § 1 g) of the LPCJP and Article 1978-A of the Civil Code, and were therefore “prescribed by law”.
  97. It appears from the reasons given by the domestic courts that the decisions to which the applicant had the objective of safeguarding the interests of children. The interference in question therefore pursued a legitimate aim under Article 8 § 2 of the Convention: “the protection of rights and freedoms of others.” The question is therefore whether the measures were “necessary in a democratic society” to achieve the legitimate aim in the particular circumstances of the case; more specifically, it is whether the application made in this case the legislation struck a fair balance between the best interests of the child and other competing interests.
  i. preliminary observations
  98. As a preliminary point, the Court notes the concluding observations and recommendations presented by the Committee of the UN Rights of the Child adopted 31 January 2014 concerning the situation of families living in persistent poverty in Portugal (see comments and recommendations n os 39-42 and 57-58 times in paragraph 57 above).
  99. Next, in the present case, it notes the following.
  First, the family of the applicant was the subject of a first report of the CPCJ in 2005, since the applicant was unemployed and his spouse, the children’s father, was often away from home because his polygamy.
  Subsequently, a rights promotion agreement and child protection between the applicant, spouse and CPCJ was established January 4, 2007 pursuant to section 55 of the LPCJP concerning E. (then aged 11 years), I. (then aged 5), M. (then aged 2), Y. (then aged 1 year) and IR (then aged three months). Under the agreement, the applicant was engaged, among others, to seek employment, to improve the living conditions in its housing and to ensure to allow his children to go to school and, where appropriate, from attending kindergartens or nurseries. Also according to the agreement, CPCJ was committed, for its part, to monitor and support the implementation of the Agreement through recommendations, suggestions and proposals (see paragraph 9 above).
  The promotion procedure for the rights and protection of children at risk was officially opened on 26 September 2007, at the request of the CPCJ who was brought to the attention of the prosecutor at the court in Sintra family affairs lack of cooperation from applicant as part of the agreement, including the lack of adequate material conditions and neglect. A measure of support to parents against children was then applied on 21 December 2007 in accordance with Article 39 of the LPCJP. It resulted from the support provided to the applicant by a social worker of the ECJ in order to teach it to organize their home and care for her children (paragraphs 15-17 above – above ).
  Following a hearing held on June 25 2009 in the presence of the applicant and her husband, additional clauses were added to the protection agreement by which, inter alia, the applicant undertook to rectify the situation in Portugal , to submit a dossier in order to obtain a financial allocation to designate a trusted person in the family or social circle and to undergo a sterilization operation by tubal ligation (see paragraph 18 above).
  Finally, between 10 September 2009 and 24 June 2011, the applicant was the subject of several controls ECJ.
  100. The Court further notes that the ECJ has sent five reports to the court, including opportunities early pregnancies of two older girls, always precarious and unhealthy housing conditions, a one-time truancy of some children, but also good grades with regard to E. I. and the lack of vaccinations update in respect of M., L., and A. MS, lack of hygiene observed in children as well as the non-compliance the commitment by the applicant to be sterilized.
  101. The Court also observes that, in financial terms, the ECJ noted that the applicant was still out of work and she received 393 EUR family allowance, the children’s father had declared a monthly income of 366 EUR and that parents still had not submitted an application to obtain financial assistance.
  102. It further notes that in its judgment of 25 May 2012, the Family Court ordered three types of measures: a support measure of autonomy with regard to E. (then aged 17) , a measure of support to the applicant concerning I. (then aged 11) and institutionalization measure to the adoption of Mr. (then 8 years old), Y. (then aged 7 years ), IR (then aged 6 years), and L. MS (then aged 4), A. (then 3 years old) and R. (then aged 7 months).
  103. The purpose of the request therefore concerns the measure taken against the seven youngest children of the applicant, confirmed by the Court of Appeal of Lisbon and, ultimately, the Supreme Court of years his judgment of 17 September 2015, and executed from the last six of them (see paragraph 35 above).
  ii. The institutionalization of measures of the seven youngest children of the applicant for adoption
  α) on the precarious situation of the applicant
  104. The Court notes that it was primarily criticized the applicant for not providing adequate material conditions for their children and for neglecting them.
  105. The Court reiterates that it is not him substituted er its assessment for that of the competent national authorities on the measures that have been taken since they are in fact better placed to make such an assessment in particular because they are in direct contact with the context of the case and the parties involved ( Reigado Ramos v. Portugal , n o 73229/01 , § 53, 22 November 2005). However, in this case, it considers the outset that it was objectively clear that the situation of the applicant was particularly fragile since it had to bear a large family, in this case ten children, that it amounted to only addition owing to the absence of her husband.
  106. Now it appears that the applicant survived with 393 EUR family allowance per month and it ensured the food and clothing for the family by using the food bank and donations from individuals or associations. Despite the obvious material deprivation found in the various home visits to the applicant, the domestic authorities did not try to fill these gaps through additional financial assistance to cover the basic needs of the family (eg in food, electricity and running water) and the hospitality of the younger children in family day care to allow the applicant to exercise a paid job. In reality, it appears that social services in charge of support for the family waiting on the part of the applicant, in addition to the regularization of its situation in the country, the formal presentation of a reasoned record exists needs yet they themselves identified and reported (see paragraphs 23 and 26 above – above). The Court believes that the authorities should take concrete steps to allow children to live with their mother, before placing and open a adoptability procedure. It also recalls that the role of social protection authorities is precisely that of helping those in difficulty, guiding them through the process and advise, among others, about the different types of available social benefits, opportunities to obtain social housing or other means to overcome their difficulties ( Saviny v. Ukraine , n o 39948/06 , § 57, 18 December 2008, and RMS v. Spain n o 28775/12 , § 86, 18 June 2013 ). In the case of vulnerable people, authorities must show special attention and must ensure their greater protection ( B. v. Romania (n o 2) , n o 1285 to 1203 , §§ 86 and 114, February 19 2013 Todorova v. Italy , n o 33932/06 , § 75, 13 January 2009, and Zhou v. Italy , n o 33773/11 , § 58, 21 January 2014).
  107. While it is true that in some cases declared inadmissible by the Court, the placement of children was motivated by the unsatisfactory living conditions and material deprivation, it has never been the sole reason as the basis for the decisions of national courts: in addition there were other elements such as psychic conditions of the parents or emotional disability, educational and teaching (see, for example, Rampogna and Murgia v. Italy (dec), n. o 40753 / 98 , May 11, 1999, and MG and MTA v. Italy (dec.), n o 17421/02 , 28 June 2005).
  108. In this case, it is clear that at no stage of the procedure were discussed situations of violence or abuse against children (see, a contrario , Dewinne v. Belgium (dec. ), n o 56024/00 , 10 March 2005, and Zakharova v. France (dec.), n o 57306/00 , 13 December 2005) and sexual abuse (see, a contrario , Covezzi and Morselli v. Italy , n o 52763/99 , § 104, 9 May 2003, Clemeno and others v. Italy , n o 19537/03 , § 50, 21 October 2008, and Errico v. Italy , n o 29768/05 , § 48, 24 February 2009 ). The courts have not found emotional neglect (see, conversely, Kutzner , cited above, § 68, and Barelli and Others v. Italy (dec.), N o 15104/04 , 27 April 2010) or a worrying state of health or mental imbalance parents (see, a contrario , Bertrand v. France (dec.), n o 57376/00 , 19 February 2002, and Couillard Maugery , § 261). Rather, it appears that attachment links between the applicant and her children were particularly strong, which the Family Court has also noted in its decision (paragraph 34 above). It does not follow the internal record as expertise of children, at least older, has been initiated.
  β) on the commitment made by the applicant under the protection agreement, for sterilization
  109. The Court recalls that the dignity and human freedom are the essence of the Convention ( Christine Goodwin v UK. [GC], n o 28957/95 , § 90, ECHR 2002 – VI). In the sphere of medical assistance, the tax treatment without the free, express and informed consent of an adult in full possession of his mental capacity does not comply with the right to physical integrity and, a fortiori , with the Convention ( Glass v UK. , n o 61827/00 , §§ 82 – 83, ECHR 200 – II, and Jehovah’s witnesses of Moscow v. Russia , n o 302/02 , § 135 10 June 2010).
  110. The Court emphasizes that sterilization is a major attack on the ability of a person to procreate. As this intervention concerns an essential bodily functions of humans, it affects many aspects of a person’s integrity, including physical and mental well-being and emotional, spiritual and family. It can be practiced legitimately at the request of the person concerned, such as birth control or for therapeutic purposes where the existence of a medical necessity is established convincingly. However, the situation is different where such medical treatment has become an adult and sane patient without his consent. Such a design shall be considered incompatible with respect for the freedom and dignity of man, which is one of the fundamental principles of the Convention ( VC v. Slovakia , n o 18968/07 , §§ 106-107, ECHR 2011 (extracts), and NB v. Slovakia , n o 29518/10 , § 80, 12 June 2012).
  111. In the present case, the Court observes that the lack of monitoring of adequate family planning has resulted in worsening the financial situation, already difficult for the applicant. However, it considers that the addition of a commitment to the sterilization interested in the protection agreement established with social services is particularly serious (paragraph 18 above – above). It believes that social services could advise the applicant less intrusive contraceptive methods to respond to the lack of monitoring of family planning they found. Moreover, even assuming that the applicant deliberately accepted this approach, as the Government submitted, the Court noted that the applicant finally refused to undergo the operation in question and that, contrary to what the government refusal has clearly been brought against it by both the family Court by the Court of appeal of Lisbon and the Supreme Court, which accepted the facts established by the first instance (paragraphs 34, 41 and 46 below -above). In addition, the Court wishes to point out as a matter of principle, that the use of a sterilization operation can never be a condition for continued parental rights. Consequently, the failure by the mother of his commitment to submit to such a transaction does not in any way be held against it, even in the case of a voluntary and informed commitment on his part.
  iii. On the prohibition of any contact between the applicant and his seven younger children
  112. If it is not the task of replacing the domestic authorities to regulate matters of custody and access, it is for the Court to review under the Convention the decisions that they have taken in the exercise of their discretion
  113. In the present case, the Court found that the prohibition of any contact between the applicant and her children have been the subject of an investment institution for the adoption was pronounced by the judgment of 25 May 2012 the family court, pursuant to Article 1978-A of the civil code which provides for deprivation of parental authority in connection with any investment measure to adopt regardless concrete situations. It notes that this measure was executed June 8, 2012, when the forced placement of children in institutions, and it lasted until 5 March 2015, the date of the lifting of the ban after the decision by it pursuant to Article 39 of the Rules.
  114. The Court reiterates its position that additional restrictions are justified under Article 8 of the Convention that when the family was particularly indignant vis-à-vis the child. Or, as it has already raised previously (see paragraph 108 below – above), this was not the case in the present case. Despite the lack of evidence of violence or abuse vis-à-vis her children, the applicant was deprived of any access, while they had between seven months and 10 years and that his appeal against the judgment of the family court was pending. The Court further observes that the six children were actually placed in three different institutions, making difficult to maintain fraternal ties. This measure has caused not only the family breakdown, but also siblings, and went against the best interests of children ( Pontes , cited above, § 98).
  iv. On decision making
  115. The Court observes that, to justify their decisions the domestic courts are essentially based on the reports of the CCPCJ and the ECJ that accompanied the applicant in previous years. It notes that no psychological evaluation by an independent expert was ordered to assess the maturity and educational and teaching skills of the applicant ( Saviny , cited above, § 58) and a psychological evaluation of children did not longer considered necessary as it appears that the eldest daughters of the applicant ensured a crucial educational role with their cadets, to constitute for them referees. It notes that the Court of Appeal of Lisbon has not given the information that the applicant has submitted in support of his application to show that she had looked for solutions to its problems after being removed his children (see paragraph 41 above). The Court also notes that, in the review of the case on 27 March 2014 the panel of three judges of the Court of Appeal of Lisbon confirmed word for word the previous decision of the single judge by the copy-process paste, which is not an actual review of the situation (see paragraph 42 above).
  116. As to the alleged lack of notification of the prosecutor’s submissions as part of the protection process, the Court considers that, since it has no direct knowledge of the case file, it n is not able to decide whether the applicant received or not reporting them. However, it finds that the applicant was not represented by a lawyer in proceedings before the Family Court, which was also not compulsory at the relevant time (it has been since the entry into force of law 142/2015 of 8 September 2015 amending Article 103 of the LPCJP), except in the appeal. As she has said in the judgment Assunção Chaves (cited above, § 82), given the complexity and the issue of child protection proceedings in danger and extremely serious and delicate consequences thereof this both for the child and parents concerned, the Court considers that precautions and additional procedures have been taken to ensure not only of understanding by the applicant of the exact stake in the proceedings, but also effective participation in the latter. The Court notes that the applicant has participated only once in a hearing, namely before the Family Court (paragraph 33 above) for his hearing before that court.
  117. In the alternative, the Court notes that, since it is represented by a lawyer – that is to say from the judgment of the Family Court of May 25, 2012 – the applicant took his case to the highest courts, introducing appeals and making repeated requests for access to his children. This act supported procedural ivity contrast to that prevailing in the proceedings before the Family Court, during which the applicant was not represented by a lawyer.
  α) Conclusions
  118. Notwithstanding the margin of appreciation enjoyed by the respondent State in the present case, the Court does not consider that the institutionalization of measures for their adoption, imposed on seven of his children, Mr. , Y, R, L., S., A. and R., and executed from the last six, to the extent that it deprived the applicant of her parental rights in respect of his children and contacts with them, causing the rupture of the biological family relationship was relevant and adequate in relation to the legitimate aim pursued and therefore necessary in a democratic society. To arrive at this conclusion the Court has had particular regard to the above considerations, namely, the absence of violence or abuse physical (compare R. and H. v. United Kingdom , n o 35348/06 , § 85, 31 May 2011), sexual or psychological against children, the existence of strong emotional bonds with them, the lack of response from social services to the physical distress of the applicant s mother a large family, exercising his almost single parenting. It also notes that the courts had not properly considered the cultural differences in the context of the proceedings in question and raises the pressure on it for submission to a sterilization operation under the procedure protection of minors.
  119. Since the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , cited above, § 59), the Court considers that the measures adopted by the placement of children in courts of the applicant for adoption, depriving her of her parental rights, have spared a balance the interests at stake in the domestic proceedings ( R. and H. , supra, § 72). It does not appear, moreover, that the courts have considered other less restrictive measures, including foster care and institutional care, established by Article 35 § 1 e) and f) of the Law the protection of children and youth at risk (see paragraph 61 above).
  120. In conclusion, on the basis of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L. , MS, A. and R. for their adoption (paragraphs 104-107).
  121. In addition, there has been a violation of Article 8 of the Convention that the decision of placing children in an institution for adoption took account of the failure by the applicant to its commitment to undergo sterilization by tubal ligation (paragraphs 109-111).
  122. The Court also considers that there has been interference with the right of the applicant to respect for his family life due to the prohibition of any contact between her and her children. There has therefore been a violation of Article 8 of the Convention in this regard (paragraphs 112-114).
  123. Finally, there has been a violation of Article 8 of the Convention because the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant (paragraphs 115-117).
  III. APPLICATION OF ARTICLE 39 OF THE RULES OF COURT
  124. The Court recalls that according to Article 44 § 2 of the Convention, this judgment will become final a) when the parties declare that they do not require the transfer of the case to the Grand Chamber; or b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c) when the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.
  125. The Court considers that the measures it has indicated to the Government pursuant to Article 39 of Regulation (paragraphs 53-56 above) should remain in force until the present judgment becomes final or that it makes a further decision in this regard. After the final judgment, the applicant may, if necessary and if desired, make a new application for interim measures under Article 39 of the Rules of Court.
  IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
  A. Damage
  126. Under Article 41 of the Convention,
  “If the Court finds that there has been violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation consequences of this violation, the Court awards the part injured, if necessary, just satisfaction. ”
  127. The applicant claimed 150,000 euros (EUR) for pecuniary damage.
  128. The Government left to the discretion of the Court.
  129. Given the circumstances of the case and the four findings of violations of Article 8 of the Convention contained in paragraphs 120, 121, 122 and 123, the Court considers that the applicant suffered non-pecuniary damage. Given all the evidence before it and equitable basis, as required by Article 41 of the Convention, the Court considers it appropriate to award the applicant EUR 15 000 for non-pecuniary damage .
  130. Under the particular circumstances of this case and the urgent need to end the violation of the right of the applicant to respect for his family life, the Court invited the national authorities to review, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children (see, mutatis mutandis , Bondavalli v. Italy , n o 35532/12 , §§ 83 and 91, November 17, 2015, and RMS, § 101).
  B. Costs and expenses
  131. The applicant made no application for costs and expenses. The Court considers that there is therefore no need to grant it to award under this head.
  Default interest
  132. The Court considers it appropriate to base the default interest rate on the interest rate on the marginal lending rate of the European Central Bank plus three percentage points.
  FOR THESE REASONS, THE COURT UNANIMOUSLY
  1. Declares the application admissible;
  2. Decides to continue to indicate to the Government, pursuant to Article 39 of the Rules, it is desirable in the interests of the proper conduct of the proceedings, to take appropriate measures to ensure the right of visit the applicant to his children having been an institutionalization for their adoption until the present judgment becomes final or she makes another decision in this regard;
  3. Holds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L., S., A. and R. for their adoption ;
  4. Holds that there has been a violation of Article 8 of the Convention on account of the fact that children’s placement decision in an institution for adoption took account of the failure by the applicant of its commitment to submit to sterilization by tubal ligation;
  5. Holds that there has been a violation of Article 8 of the Convention on account of the ban on contact between the applicant and her children M., Y, R, L, MS, R and A. . June 8, 2012 to March 5, 2015;
  6. Holds that there has been a violation of Article 8 of the Convention due to the lack of effective involvement of the applicant in the decision making process that resulted in six of institutionalization of children for their adoption ;
  7. Holds that local authorities will reconsider, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children;
  8. Holds
  a) that the respondent State is to pay the applicant, within three months from the day the judgment becomes final in accordance with Article 44 § 2 of the Convention, 15 000 EUR (fifteen thousand euros), plus any tax that may be chargeable to tax for non-pecuniary damage;
  b) that from the expiry of that period until settlement, this amount will increase to simple interest at a rate equal to the marginal lending rate of the European Central Bank during the period, plus three percentage points;
  9. Rejects the claim for just satisfaction to the remainder.
  Done in French, and notified by 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
  Françoise Elens-PassosAndrás Sajó
  GreffièrePrésident
  At this stop is attached, in accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court of the separate opinion of Judge A. Sajó.
  CONCURRING OPINION OF JUDGE SAJÓ
  I fully agree with the judgment. I think it is important to emphasize that the best interests of the child is – except in exceptional cases – to be with her parents. The 1989 Convention on Children’s Rights provides in Article 3 § 1, that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A primary consideration does not exclude the existence of other considerations and in the presence of a Convention right, we must strive to harmonize different interests. However, it is important to emphasize that the best interests of the child is not in principle opposed to the fundamental right of parents to live a family life with their children. The rule of the best interests of the child shall be construed as a rule excluding the fundamental rights of parents. Moreover, we find this consideration in Article 9 § 1 of the Convention on children’s rights:
  “States Parties shall ensure that the child is not separated from their parents against their will, except when competent authorities determine, […], that such separation is necessary for the best interests of the child. ”
  Similarly, the Court has recognized that it is as much in the child’s interest and in that of his parents that the relationship between he and his family are kept, except in cases where the latter has shown particularly unworthy: break those links back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time v enu, “reconstitute” the family ( Gnahoré v. France , n o 40031/98 , § 59, ECHR 2000 – IX).
  According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family (see, mutatis mutandis , Kroon and others v. the Netherlands , 27 October 1994, series A n o 297-C, § 32, and Wagner and JMWL v. Luxembourg , n o 76240/01 , 28 June 2007). For parent and child of each constitutes a fundamental element of family life. Moreover, if the Court finds a measure concerning interference with the exercise of rights protected by the Convention is “necessary in a democratic society” requires that the reasons given for the measure in question is relevant (and sufficient ).
  Originally the unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.
  This entry was posted in Proportionality and Article 8 and tagged adoption, Article 8, ECHR, ECtHR, human rights on March 22, 2016 by Sarah Phillimore.
  National Adoption Week – An adopter’s view
  We are grateful for this post from an adoptive parent, who calls for an end to the distorting rhetoric about adoption; without honest and open discussion of what is gained and lost through adoption, we risk losing focus on what should be the fundamental core of all our endeavours here – the children and what they need.
  During National Adoption Week, as a society, will we be able to finally have the conversation we urgently need? Or will rhetoric and political agendas continue to stifle that debate?
  I have come to understand that adoption is more about loss than gain
  Today is the start of National Adoption Week (NAW) when Adoption Agencies (on behalf of the Government) want and need to inform the public about how their country needs them. Not to go to war but to parent children and young people through adoption when nothing else will do
  I am an adopter. I have a few problems with National Adoption Week. I probably shouldn’t because I can recall seeing some daytime tv 16yrs ago and thinking – `yep, that is what we need to do.’ Hubby and I would make good parents and if children need a forever family, that can and should be us.
  Over the years that followed that day, I have come to understand that modern adoption is more about loss than gain. I hope you will understand why I think that by the end of this week.
  I am a member of a peer support group for the parents of traumatised adopted children and young people. Trauma is a term we think best describes the losses our children have lived with. It describes their loss of birth family, identity, childhoods where they had rights to be kept safe, physically and psychologically.
  A few weeks ago a few of us attended the first Family Law Class open to all . It was a good class. We were well aware that ‘our’ children’s birth families could be sat next to us and that was ok. It was ok because we know about their loss, their difficulties with communicating and dealing with professionals at an immensely difficult time in their lives. We know because a minority of experienced adopters go through the same experience with social services as many struggling birth parents. I will talk about that later this week.
  Today I want to talk about what I feel is often unsaid during NAW, about birth parents, adopters and ‘our’ children.
  The elephant in the room – what will happen if my child’s birth parents didn’t harm them after all?
  Those professionals and interested adopters will know that the answer to the question is – probably nothing. The circumstances under which any Judge will reverse a decision involving an Adoption Order (certainly after some time has elapsed) are very rare.
  But experienced adopters are well aware of the miscarriages of justice that have happened in the UK. I speak for many adopters who feel that these miscarriages of justice are a travesty. A child and maybe their siblings will have lost their birth parents, each other and everything they hold dear. They may be moved from pillar to post within the care system, being sent to live with strangers and one day, will have to learn that none of that should have happened. Such a loss can never really be put into words can it?
  Adopters feel for birth parents where miscarriages of justice have happened. We have genuine empathy for them and hope that agencies (& if necessary the courts) do everything in their power to ensure that those children, birth parents and adoptive families are enabled to build a mutually rewarding relationship in the future. It can be done, I am sure of it. Society needs it to be so.
  But what of those children and young people that were rightly removed from their birth parents?
  People approved for adoption will have been told and will have read reports written by social services about the children’s life with birth parents. We will have been told that the children need a new `forever` family because birth parents are not able to safeguard them. The birth parents are deemed by all in authority to not be `good enough parents’. This is my first problem with NAW.
  NAW will have you, the person wanting to be a parent, believing that that is absolutely the case. It may well be, but I have been concerned for a number of years that it isn’t that simple.
  Prospective adopters need to believe that for `our` children to have been placed for adoption, their birth families must not have been ‘good enough’ to do the job. Parents need to keep the children safe, not to abuse or neglect them, to put the children’s needs above their own. Parenting isn’t just about loving them. Social services are meant to prove that to be the case. Family law courts are supposed to ensure that that is the case before they agree to a placement order and thereafter an adoption order. Adopters need to believe that social services have also ruled out that other forms of permanence would not be in their child’s best interest too.
  We will be led to believe that some birth parents should either never have direct contact (I prefer to say `have a relationship with`), or should absolutely have a relationship. We need to know that all the decisions made in relation to `our` children are made with the best of intentions.
  We adopters need to know these things because contrary to some rhetoric, adopters do not want to steal children, we are not a market of middle class do gooders or people that need to have a child as a fashion accessory. We are not the reason that children need to be removed from the otherwise loving caring homes any more than the government have `targets` for removing children to support some black market.
  We are just people who know we can give love, nurture and care to traumatised children and young people. We can and do put our children’s needs above our own.
  My message throughout NAW is that children and young people must always be at the core of everything that is done in their name.
  `OUR’ kids must always be the priority.
  This entry was posted in Adoptive Parents and tagged adoption, adoptive parents, Birth parents, National Adoption Week, trauma on October 17, 2015 by Sarah Phillimore.
  A Social Worker’s perspective on the judgment in W (A child)
  This is a post by Kate Wells a retired social worker, who sets out her views about the case of W (A Child) [2015] – an extra-ordinary judgment, both in its decision to refuse to make an adoption order and return W to her father’s care and also for the language used by the Judge to criticise the decision making of Judges, social workers AND the guardian. There is now an appeal lodged against this judgment and we will await further news.
  I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.
  However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests.
  Dealing with the threshold criteria
  The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. The DJ had failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that:
  The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012. What he does not accept is the allegations in respect of the ‘toothbrush’ incident with [X] in November 2012 and the injury to [Z]’s ear in December 2012.
  Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged.
  As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation.
  I am satisfied however otherwise the threshold is crossed.”
  There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.
  It would be interesting to know exactly what grounds the LA put forward to prove significant harm. Is there any way that this can be sought? I also wondered why there were no findings in relation to the baby falling from the sofa, at aged under 4 weeks, although the baby had been examined at hospital and no serious injury found.
  Criticisms of the SW Evidence
  The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.
  Given the DJ’s criticism of the social worker’s unconvincing evidence, in an application to remove all 4 children from the care of the father, it seems to me all the more curious that the DJ made a Care and Placement Order in respect of W. Incidentally is it within the Judge’s remit to order that a social worker be replaced – suppose it is! Is this a common occurrence?
  18. The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father.
  It seems clear that Ms Hendry was well out of her depth in proving that these 4 children were being significantly harmed. The substitute social workers must have felt very anxious and intimidated, but did themselves no favours by repeating the same arguments i.e. the need for the father to change, and repeated allegations of physical abuse, which had been disregarded by the DJ. It could be however that the DJ’s judgement was also “erroneous” in this respect, but that doesn’t excuse the LA from persisting along that track.
  However there is no mention of the LA lawyer and why an application to remove 4 children from their parents was not scrutinised to ensure that the evidence met the standard required to prove significant harm in the balance of probabilities.
  What is the Impact on W of being moved 5 times in 3 years?
  41. Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instance he thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”
  Here we have a clinical psychologist talking of “good attachments” – good, as opposed to “bad”……….grrrh. There are references in the judgement to “strong” attachments – I MUST make those notes on attachment theory. However I am really concerned that Dr W can believe that this child should be moved back to her father. The wrong decision was almost certainly made by the DJ but this child was moved 3 times before moving to her adoptive placement, where she has lived for 16 months, and Dr W is recommending a 5th move for a child not yet 3 years old. Does he not realise that the first 3 years of a child’s life are the most important years of all, and lay down the foundation for the remainder of her life, be that positive or negative.
  All this talk of what W is going to think when she is 12/13/14 and asks why she was adopted and not the other 3 children, is pure conjecture, nothing more, mothing less and it seems to have totally influenced the Judge. There is absolutely no way of knowing what W might think about the reasons that she was adopted. It is just as likely that she will be glad that she was adopted especially if she has had a happy and untroubled childhood and a family who will continue to support her throughout their lifetime.
  Balanced against this child being subjected to 5 moves before her 3rd birthday it is, as far as I’m concerned a “no brainer” (much as I dislike that phrase) W was placed with her adoptive family at the age of approx. 1.5 years and will be 3 years old in Nov this year. We know nothing of the early weeks and months of W’s placement with the prospective adopters, and the difficulties of settling a child who had 3 moves in 18 months.
  At some point in the judgement, the Judge acknowledges the trauma for the prospective adopters but comments that their failure to re-assure the court of their willingness to facilitate W’s move back to her father as evidence of them not putting the needs of the child before their own. I think this comment was grossly unfair and unnecessary. It was also unfair to put the adopters on the spot by asking how they would explain to W that she was adopted whilst her 3 siblings remained in the care of their father, and again the Judge was critical of their inability to provide a satisfactory response. Prospective adopters are all told that the child must know that they are adopted right from the word GO – and it is usually done by means of a life story book which should contain pictures of the birth parents/siblings, other members of their extended family, foster carers etc. Photographs can be added as the child grows. Birth mothers are usually referred to as “tummy mummies” and all explanation obviously have to be age appropriate. However to expect adopters to be able to “fast forward the tape” to answer the possible questions of an older child is simply unfair, as so much will depend on the child and the nature of any questions, if indeed any are forthcoming. Many adopted children are not interested in their background although this tends to change once they are adult and especially after giving birth to their own child. This is a key time for searching for birth mothers, though many adoptees wait until the adoptive parents have died before searching.
  The wishes and feelings of W’s siblings
  42. Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.
  What I wonder is a “strong awareness” – yes the children know they have a little sister but they haven’t seen her for over 18 months, though given their ages, they will remember her of course. On what basis does Mr H make his assertion that W’s return to the family reduce X’s anxiety? It is small wonder that X is anxious given her family background and the fact that her mother is seriously mentally ill, and she therefore is not able to have a good relationship with her, something that is very important to young women on the brink of adolescence. There is no mention of a supportive granny or aunt who may be able to offer X the support she will need as she reaches puberty. I think it naïve in the extreme that Mr H believes that having W back in the family will alleviate X’s anxiety – it could well increase it, especially as W is going to be very confused and upset at the move, and this distress will be played out in the family home, in my view adversely affecting all 3 of the other children. The father will of necessity need to divert his attention to W and so the other children could be disadvantaged as a result.
  So much talk of “finely balanced” ……….
  Matter is finely balanced, recommendations vague
  43. Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but as much of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”
  Seems to me that Mr H has bowed to the “superior knowledge” of the clinical psychologist and does not have the courage of his convictions. Any experienced social worker should know that to move a child 5 times in her first 3 years of life is NOT acting in her best interests. You don’t need to be a psychologist to know this, and of course Dr W doesn’t seem to know that either.
  44. He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.
  What do these vague recommendations actually mean? Yes I agree X needs support, but where is this “mentor” going to come from – the LA won’t be in the business of paying anyone to perform this mentoring duty, and what is meant by “time out” ??? Hmm the Judge doesn’t seem to be concerned with vague comments that don’t mean anything.
  45. As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”
  Mr H “feels” – the court shouldn’t be concerned with “feelings” surely, they should be concerned with evidence. This is a family that have all suffered in their different ways, the mother because of her mental health issues, the father attempting to save the marriage and the stresses and strains of doing that, alongside being the primary carer for 4 children, one just a few weeks old. And the children have witnessed their mother in irrational and angry states and attacking their father on at least one occasion, and the turmoil and distress this must have caused them, and now the mother is no longer in the family home – and Mr H believes that the “biggest remaining upset” is that the family “see themselves as disjointed” – I’m sure they do, because they are, but not necessarily because W was missing.
  What will happen in the future?
  46. Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement.
  Ah I see Mr H can see into the future! I am simply astonished at this comment and even more astonished that it has been accepted by the Judge.
  48. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.
  Given Mr. H’s comments about the internet, this could well be true for any child who has been adopted and it is a valid issue, but if this is going to weigh so heavily in deciding a child’s future then it surely will only be a matter of time before it will mean an end to a child’s future being secured by way of adoption or any other form of permanent care. And again we see Mr. H’s capacity to see into the future, evidenced in his comments about the possibility of the prospective adopters moving abroad during W’s minority! Astonishing!
  As you can see I am very frustrated about Mr. H’s “expertise” but that changes to anger when he assert that “a breakdown of the adoptive placement is likely because the As are part of the proceedings and voicing resistance to her going home.” Dear god, of course they are resistant to her going home. Mr H claims to have an expertise in adoption and adoptive placements, and yet he can make such a ridiculous comment. They would be very strange adopters if they would happily agree that this child, who they have loved and nurtured for 16 months and who they envisaged being a part of their family for ever, should be returned home to the care of her father.
  Maybe Mr H spelled out in details just how exactly “there is a lot more to be gained by W going home.” Or then again maybe he didn’t, but he’s impressed the Judge, so that’s all that matters.
  Psychobabble and defensiveness
  47. I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.
  48. The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads”[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight
  It is very odd in my view, and totally unacceptable that the social worker with case responsibility does not file a statement, but this is done by her team manager and I am sure the Judge is right in thinking that Ms Wilkinson did not feel she was capable of making a statement and being cross examined. Maybe the Ms W was a newly qualified worker. But Ms Alsop’s noble attempt to step in fell on stoney ground, and as much as I dislike the term “psychobabble” as a derogatory term, I have to agree that her comments made little sense.
  I have tried to de-gobbledygook the comments made by Ms A: – The father has had such a traumatic childhood that he can’t really talk to the children on their level, and he has tried to shut out the pain of the past, and this prevents him from understanding the distress the children are suffering. Best I can do! However this is opinion not evidence and it doesn’t make much sense even when phrased in simple language
  Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.
  Poor Ms A – the team manager who stepped in to show the social worker how it’s done – maybe she should remember that when you’re in a hole, stop digging!
  In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.
  Churlish of Ms A to disregard the counselling the father has undertaken. Ok there are no quick fixes and 11 months (or even 11 years) are sometimes not enough to alleviate the long term difficulties associated with a traumatic childhood, as these can persist through the lifespan, often in the form of PTSD, but credit should be given to the father for seeking help via counselling. MsA is very hung up on the notion of the father “using disassociation as a defence against the trauma he has suffered” expressed previously as “adopting maladaptive strategies………
  To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge.
  I’ve stopped feeling sorry for Ms W – there is absolutely no excuse to be grudging and defensive in written and oral evidence and demonstrates a complete lack of even a modicum of professional wisdom and integrity. I have come across this attitude when working as a Guardian (before guardians were employed by CAFCASS) and we worked on reciprocal arrangements with neighbouring LAs, and when I was working independently. However I still think it was regrettable that the DJ made the serious error in the first place and this must have influenced the LA social workers that they had a good case. Again where was the LA lawyer in all this………….?
  Guardian’s evidence – beyond shocking
  At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.
  The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.
  Shocking, clearly hopelessly incompetent Guardian – “at sixes and sevens with each other” WTF! And “systemically closed” – I have absolutely no idea what this means and I doubt he did either. “Shut out” is a guess!
  I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.
  Beyond shocking – sounds like he just didn’t care about these children or their future, and having been criticised for aligning himself with the view of the LA, he grudgingly aligned himself with the expert opinion. I imagine this was to prevent any further criticism from the Judge, rather than anything else.
  Well Sarah this took rather longer than I expected and I am beyond burning the midnight oil. I hope you will see that I am not defending the LA social workers at all, and the Guardian was clearly lazy and incompetent. I think the Judge’s criticisms of the psychobabble were justified and yes it does underline the need to use plain English, both in writing reports and giving oral evidence.
  However I am really upset that this little girl is going to be moved from the prospective adopters and am very frustrated that so called experts can honestly believe that to subject a child to 5 moves before her 3rd birthday is acting in the child’s best interests. I think far too much weight was given to what she might think about her adoptive placement when she is old enough to understand – and how this influenced the Judge. At one stage he mentioned that W will have some residual memory of her father and siblings at the last contact, which must have been some 18 months ago. I absolutely disagree and in the child’s sense of time, at her age, she can’t possibly have this kind of recall.
  There is not a great deal of criticism from the Judge about the DJ’s judgement, other than to say it was “erroneous” (something of an under statement) and again no criticism of the LA lawyer. What IS it with these lawyers – do they not understand the need to ensure that there is sufficient evidence for the LA to prove their case. That surely is a fundamental task of such a lawyer.
  The other issue is the mother of the children, and little is said about her in the judgement. I think I read father has a RO on the 3 children. I do wonder if the LA were critical of the fact that the parents were obviously having a sexual relationship which resulted in the birth of W. This wasn’t made explicit, but I wonder if it was somewhere in their thinking, as there were comments that the father was putting his relationship with the mother before the needs of the children.
  I also wonder about the mother’s mental health. I note that she has a diagnosis of recurrent depressive disorder with Emotionally Unstable PD, but I wonder if there is also a psychotic element to her mental illness, as some of the descriptions of her behaviour would suggest this could be the case. She has also been sectioned under the Mental Health Act on more than one occasion I think and it’s very unusual for the use of a Section in the absence of a psychotic illness.
  If this is the case, then there is the possibility of this illness emerging in one (or more) of the children, as psychosis is by and large a hereditary condition. This doesn’t seem to have been addressed at all. I think EUPD is a bit of a “catch all” diagnosis and until relatively recently wasn’t seen as a treatable mental illness. Very often though patients are wrongly diagnosed and this may well be the case with this mother. Mental health services as I’m sure you know are very stretched and it is easy for people to “slip through the net” as it were.
  Ah well, those are my thoughts/views for what they’re worth.
  Kate Wells
  This entry was posted in Bringing public bodies to account and tagged adoption, Evidence, refusal to make adoption order on August 4, 2015 by Sarah Phillimore.
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