Siblings and Care Proceedings – A New Report Highlights Weaknesses In The Law

One of the most powerful themes in Alice Walker’s Pulitzer Prize-winning novel, The Color Purple is that of the relationship between sisters Celie and Nettie.  Separated in adolescence for decades, their letters to each other form the structure of the book and demonstrate how the relationship and love between siblings can transcend separation and influence us for a lifetime.

But is adequate consideration given to sibling relationships when it comes to fostering and adopting children in the UK?  Does legislation and case law provide protection against children being separated from their brothers and sisters if local authorities and/or the courts become involved in a child’s welfare?

A recent report funded by the Nuffield Foundation highlights significant gaps in legislation and how the courts make decisions in adoption cases when it comes to ensuring sibling relationships are maintained.

Although sibling relationships can be a relevant factor at every stage of public law proceeding and the word ‘siblings’ is referred to across over 100 different statutory instruments, what constitutes a ‘sibling’ is inconsistent.  For example, the word ‘blood’ is used in some legislation but not in others.  References to step-siblings are only present in the Equality Act 2010 and the Mental Health Act 2005.  And there is no mention of foster siblings or sibling-like relationships, even though these can be profoundly important in a child’s life.

Children placed in care

The report noted, following analysis of cases and interviews, “plans for sibling contact are dictated largely by assumptions relating to the type of placement. In particular, there appears to be a strong presumption of direct contact for separated siblings unless a child is adopted, despite the fact that the duty on local authorities in Section 34(1) of the Children Act 1989 to allow all ‘looked after’ children ‘reasonable contact’ with their parents, does not extend to siblings.”

Children in care and subject to contact orders fared better when it came to maintaining contact with siblings.  Inter-sibling contact orders for children in care under Section 8 or Section 34 of the Children Act are rare.  But this is because contact is usually covered in the care plan and facilitated by reviews and Independent Reviewing Officers (IROs).

Adoption and sibling relationships

The report discussed the landmark Court of Appeal case of Re B-S [2013] EWCA Civ 1146.  The appeal arose from the refusal of a mother’s application under Section 47 (5) of the Adoption and Children Act 2002 for leave to oppose the making of Adoption Orders in relation to her two children.  The case emphasised that given the draconian consequences of placing a child up for adoption without parental consent, the local authority must produce an extremely high standard of evidence.  In addition, the presiding judge must provide detailed reasons why adoption is the only option for the child in question.  However, the report noted that although Re B-S emphasised the profound impact of adoption, the court never mentioned the impact of adoption on sibling relationships.

When questioned about the impact of Re B-S, family law practitioners stated:

“The main impact of Re B-S has been on the general evaluation of placement options and, of particular relevance here, on the analysis of ‘the likely effect on the child (throughout his life) of having ceased to be a member of the original family’ (Adoption and Children Act 2002 s 1(4)(f)).”

When all the data was examined, the general consensus seemed to be the loss of a sibling relationship would be far outweighed by the stability and other positive benefits it has long been assumed that adoption provides.  This is especially true when it comes to babies and toddlers.

Although the report showed a clear shift away from the old ideology that it was ‘desirable’ for adopted children to have no contact with their biological family, much of the decision ultimately lay with the adopters.

“While there was recognition that not all adoptive parents are opposed to direct contact, it was also acknowledged that adopters’ fears about contact may be reasonable and child-centred. However, it was also felt that concerns about direct contact were often ‘led by the interests of the adopters rather than the interests of the children’.  Another deeply embedded assumption is that direct contact with siblings who are living with, or are in contact with, birth relatives will undermine the placement.”

It was shown that an order for contact under section 26 of the Adoption and Children Act 2002 was seldom used, with the most overarching reason being it was feared that such an order would restrict the number of adopters.

Recommendations

The report by Daniel Monk and Jan Macvarish from the School of Law, Birkbeck, University of London, makes several recommendations regarding siblings in relation to public law proceedings:

  • A review of the primary and secondary legislation by the Department of Education and Parliamentary Counsel to clarify references to step-siblings in adoption law and remove references to ‘blood’ in the context of siblings.
  • To listen to how the child understands their sibling relationships and dissemination of the Family Justice Young People’s Board’s Top Tips for professionals when working with brothers and sisters.
  • Conduct further research into the allocation and gatekeeping practices in the Family Courts in cases involving groups of siblings.
  • Extending to siblings the existing duty on local authorities in Section 34(1) of the Children Act 1989 to allow all ‘looked after’ children reasonable contact with their parents.
  • Remove the requirement in sections 10 and 34 of the Children Act 1989 that states siblings must apply for permission before making an application for contact and at the end of care proceedings, Solicitors should advise children about their right to apply for contact orders, particularly where contact arrangements are stipulated in care plans or recitals.
  • Wide dissemination of Beyond Together or Apart: Planning For, Assessing and Placing Sibling Groups (Beckett, CoramBAAF, 2018) and a review of the existing provision of professional training on sibling relationships for social work and legal practitioners, to enhance the rigour around assessments of sibling relationships in care proceedings.

Rosie Bracher are specialist family law solicitors based in Barnstaple.  We have the knowledge and expertise to advise you on all matters involving children and family law.  Please contact our office on 01271 314 904 and arrange to speak to one of our team.

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