“(1) Where a child is placed for adoption by an adoption agency and the prospective adopters give notice to the agency of their wish to return the child, the agency must (a) receive the child from the prospective adopters before the end of the period of seven days beginning with the giving of the notice, and (b) give notice to any parent or guardian of the child of the prospective adopters’ wish to return the child.”
“To reiterate and confirm our previous concerns: - The girls ARE at risk of serious harm here from themselves/ one another - We cannot keep the girls safe from themselves/ one another - G’s behaviour is deteriorating every day, and she is becoming less and less able to cope After several serious incidents this week where G has caused herself serious harm (At school, at home, in front of other members of family), threatening to kill herself, and destroying M’s possessions, we are at crisis point. I have called, and left a message with Sheffield’s out of hours team and I would like somebody to call me as soon as possible. Tonight, after having a couple of hours with my sister who came from London to see me for first time since Lockdown began, I have come back to [Mr A] in G’s room unable to stop G biting herself manically all over body, up arms and legs, he’s come away to open door for me, hoping she may stop too without the attention, I go up, G’s legs covered in blood as it looks like she’s bitten in two places really hard, I manage to get her down for hug and stop her, and manage to settle. Then M calls [Mr A] in several times. Once he’s happy G is ok with me, goes into M. She then tells him G has hurt her private parts again. G can hear with me. And starts diving for her shoulders with her teeth. Eventually I can restrain and calm her. Apparently when I was drying my hair before I went to see my sister, M and G had been colouring. M had gone to loo and G had followed her. [Describes assault on M’s private parts by G.] M has two huge bruises… She is in significant pain tonight. It is horrific. We are beyond devastated that yet again this has happened in our home when we already feel like we’re doing everything in our power and have been so desperately asking for help. M cannot be subjected to this any longer. G cannot be expected to cope with this any longer, and needs urgent, specialist help. We will all be traumatised by tonight’s events. Every day the retraumatising of the girls is becoming more and more significant. Please somebody call us. [Mrs and Mr A]”
“Hi all, After a day of general calm with [G] alone with me, tonight we had our most prolonged period of self harm which resulted in us calling an ambulance. It had begun at bedtime after finding two more of [M]’s headbands broken to smithereens under G’s pillow. G ran off into another room and immediately started hurting herself. For the next two and a half hours [Mr A] and I were trying to keep her safe from herself whilst she attempted to bite herself, headbutt floors doors and walls, gauging her eyes, kicking and hitting doors (Including glass doors ) floors and me, pulling her hair out, grabbing at anything she could - hangers, pegs, microphone stands, shoes, head slides... anything she could do to harm herself whilst screaming, wailing, laughing... total delirium. After 20 mins we called the CAMHS crisis - and then began a succession of being passed from pillar to post whilst in total crisis. We decided an hour in that we’d take her back to ED, and she started to calm as we prepared to go. So we sat for a couple of minutes, before 5 minutes later, it all began again. In desperation [Mr A] called Sheffield who told us to ring an ambulance. The specialist mental health nurse called us back around 30 mins later and whilst G had begun to calm, she told me/ him she still wanted to hurt herself so he thought, especially because of her age, they needed to send an ambulance to send to ED, especially as she had had a second wave of distress earlier. An hour later, G had calmed, and was allowing me to look after her, and she had started to fall asleep. With our CAMHS appt first thing, I thought at 22.30 (3.5 hours after it began), as she was started to drop off, it better that she got some sleep, so called Ambulance service to cancel. As well as the worry for G, tonight M was again subjected to a huge trauma. Whilst we were trying to soothe/ restrain G, M was cowering behind our bed holding onto her toys for dear life, sobbing hysterically. She cannot continue to be exposed to this trauma and abuse. Luckily my neighbour took her from me, so she didn’t have to be exposed to the entirety of it as she was shaking and terrified, and obviously didn’t want to be left alone with my friend K but obviously it was a necessity to protect her. The headbands tonight, were the last of M’s... this week G has destroyed every single one of M’s headbands. Ones we’ve tried to fix before. Precious personalised books and presents from foster carers and family. Bracelets. Toys. Anything that is precious to M she always targets. Never anything of her own. M, at this stage, has very little that hasn’t been broken, and this week, alongside the harm she has suffered at G’s hands, the threats of G to kill herself, M screaming from the back of the car as I’m driving that G is hurting herself and screaming “she’s bleeding mummy” will scar her for life. This is too much. We’ll do CAMHS in the morning, both girls desperately need help. But as we have been saying for weeks, they are no longer safe to live together. We are beyond waiting for help. [Mrs A]” [Mrs A]” (3) From Mrs A at 13.36 on Tuesday 21 July: “Hi all, I thought by this point, after the email I sent last night, somebody may have been in contact to help us. We have had a lovely supportive text from [the school social worker], who has been incredible throughout, but I’m afraid this lack of action from everyone else is just reflective of the way we have been treated throughout. [S] from CAMHS was very thorough and kind this morning but this is the support we should have had in October when we asked for it. We and the girls have been under incredible stress from that point, and it was impossible to think it could get worse, and in the last four weeks it has. If you are unwilling to act to protect M from G, when the most serious of harm is happening, you are leaving M to live with her abuser and face further harm, and G destroying herself and everyone around her. If you cannot protect us all now at the worst of times, I’m afraid that is it. We are heartbroken. We are not social workers and the response is not adequate from yourselves. Please come and get the girls. And wherever you place them I beg you separate M from G. We are no longer able to continue. [Mrs and Mr A] NB As I have been writing this email I have seen [C, the children’s social worker] has tried to phone 5 minutes ago. I am not going to be ringing back.” [Mrs and Mr A] (4) From Mrs A at 22.30 on Tuesday 21 July: “Hi all, Tonight at bedtime we have had yet another disclosure from M. M told us it had happened when [Mr A] and I were on the phone to [S] from CAMHS sometime between 10-11.30. We had set M up on our level in the kitchen colouring in and making cards, G was in her bedroom upstairs playing with dolls. CAMHS had told us beforehand, that the girls would need to be around as part of assessment, so we felt this set up the safest way, and [Mr A] jumped to check at any sound, and was checking regularly too. M told us Tonight she had needed the toilet so had gone up for a wee. As she stood up to dry her bottom, G came in and [describes assault on M’s private parts by G, breaking the skin and causing bruising]. M then told us she hated herself. She is a bad person, and asked us why this kept happening to her. Why G hurts her. I have not addressed this with G, as we have had yet another awful night of G hurting herself and me, and at the point of disclosure, G finally seemed to have settled a little in bed. G’s inner arms are a total mess from biting, she’s ripped out hair again and was trying to grab anything she could for long periods of time tonight. At one point when she was trying to grab my earrings out, i managed to get one out and she started screaming ‘STAB ME, STAB ME’ over and over again. I have also attached a couple of pictures of the things of M’s that G has destroyed in last 24 hours- many of the things we have previously fixed, M’s book I made for introductions front and inside, other special books, and gifts from us, grandparents, friends, nanna and [L and D]. I have no idea how M has anything left. Tonight G also poured soap all over the floor again, water all over the floor and then later wee’d all over the floor. There’s also toothpaste and faeces she’s put into the towels too. We called Sheffield out of hours to log M’s latest disclosure. They advised to call 111 as M was in pain but on calling them M was finally asleep, and they’d wanted me to wake her up to talk about the pain, which I didn’t feel was the right move. If she is still in pain tomorrow morning, which considering how purple they are again, they said to call back. Also to ensure there’s no confusion, I had showered M this morning before the CAMHS appointment and the previous bruising had subsided a lot to just being a bit grey. This is most definitely new bruising…, in addition to the less sore marks… Clearly the girls are both deeply traumatised and each have really significant mental health issues that need to be treated by a specialist immediately. [Mrs A]”
“Hi all G woke up, what appeared quite calmly. I have spoken to her about M’s disclosure. Whilst she will not talk at all, she has nodded that yes she did hurt her sister again, she understands that has bruised and hurt M, and she understands no one should touch anyone’s private parts. She will not talk and at this stage, I’m not going to push further. We’ve found more destruction this morning, but I have managed to talk her down from self harming thus far as at the breakfast table she started slowly rolling her sleeve up in preparation. Once again. These children are not safe together. M can no longer be subject to this abuse and G is totally in crisis and needs immediate psychological support. [Mrs A]” [Mrs A]” (6) From Mr S (children’s social work team manager) to Mrs A at 09.56 on Wednesday 22 July: “[Mrs A] I’m sorry I did not call you myself yesterday, I was working from home and had no access to emails until I came to the office in the afternoon for an update were I had seen your email from the night before. After we had spoken Monday I had spoken with [the Independent Reviewing Officer] and had emailed [C] asking her to ask for a follow up from the CAHMS appointment on Tuesday morning before calling you, I was thinking if we had the CAHMS update from the appointment and the timescales for [the psychologist’s] work commencing then [C] would have been in a much better position to plan with you when she called you in the afternoon. Obviously that was preceded by your request for the children to be removed from yourselves to places of safety basically from G`s incidents or targeting M further. Given the circumstances we have identified separate foster placements for the children in Sheffield where the girls actually have stayed with the foster carers before being placed with yourselves so will know them when they arrive. I know [C] had been speaking with [your social worker`s] manager yesterday and they had agreed [C] would collect the children around 11am this morning and move them to the separate foster carers. I would want to consider this as a respite type placement initially and work with yourselves and the girls in regards to identifying a way forward for the future and look at the therapy needs and relationship between the children with the psychologist. I anticipate this with both [the psychologist] and CAHMS This will also include a assessment of the dynamics of the girls relationships and if this can be sustained or not in the future. If you would prefer [C] to meet the girls at school or whilst one of you is not there we could arrange it that way. I know this will be an emotional time for all involved and would ask the children are not impacted by any discussions at this point. If needed please ask [your social worker`s] manager if you would prefer the children to be collected from school if needed and [C] can liaise with her. Please call if needed Regards [Mr S]”
“The girls have moved into separate temporary support care placements.”
“This has been a horrendous time for all involved and [the As], G and M are in a very heightened distressed & traumatic state. [The As] became so concerned about the girls safety and psychological state, they asked for the girls to be temporarily accommodated separately, whilst psychological assessments are undertaken. [The As] are having video contact with the girls and the girls are having some supervised direct contact with one another in a neutral venue, before they go on separate holidays with the foster carers. Some contact should take place between the girls, to help with feelings of loss and separation … [Mrs A] has had a CAMHS feedback session today and that will be shared with all concerned. It is clear that the family needs a more detailed and specialist psychological assessment and a sibling assessment. Sheffield… has submitted an application to fund [the psychologist’s] work and Social Care has agreed to fund any gaps in funding in order to start the work. The level of trauma and anxiety is so high at the moment – there needs to be a cooling off and reflection period to allow for the planning of immediate support measures.”
“Surely we should at least be allowed to provide that, especially as it’s in the child’s best interest. There’s no reason that she can’t come home, as it’ll be more trauma if she has another placement. We know assessment still has to be done but we can’t put M through anymore.”
“Dear Mr and Mrs A In relation to contact with yourselves… I was awaiting further case discussion with the independent psychologist as to M’s interim placement. This occurred with [C, the social worker] on 01.09.2020 and the psychologist concurred with my decision that it would be premature to return M to your care whilst assessments were undertaken. At this juncture we do not know what the independent psychological assessment or the sibling assessment will identify as outcomes for both children. The rationale for my decision not to return M to your care is based on the following observations: • The impact of a possible future removal • The emotional impact upon G of this move • It is premature whilst assessments are ongoing • That it was in fact recognised by yourselves that caring for the children was becoming too challenging and you were struggling to keep them safe therefore requested the children be received into care. M has returned to her previous foster carer’s and thus this avoids further introductions to unknown carer’s is not necessary at this time. The children will return to their school… during the assessment period as to change school at this time again would be premature. … Should the assessments conclude that neither child is returned to your care this will afford G and M to have an ending with their friendship groups and their teachers. I appreciate how difficult the current situation is for you and that you would like M returned to your care, however as the adoption order was not as yet granted you do not have parental responsibility for G and M. [C], as a qualified Advanced Social Worker, has all the competencies required to undertake such assessment in consultation with the children’s carer’s, information you have previously provided, the independent psychologist and school. [C]’s assessment will also be informed by the psychological assessment… I will also be offering [C] reflective and challenging supervision on this, and all of her other children on her caseload. Yours Faithfully [Ms M]”
“Turning to the legality of the situation, I have not had time to consider all the file recordings of discussions and correspondence passing between the Authority and your clients. I do not accept that it would not be possible for a simple request for children who had been placed for adoption to be removed to act as a termination of the adoptive placement by the prospective adopters pursuant tosection 35 of the Adoption and Children Act 2002 . However I acknowledge that it is a possibility at least that the request for removal did not have that effect in this case. Whatever Social Care department’s understanding of the technical position with regard to the nature of the placements, they clearly intended to try to continue to involve your clients in the processes, and to explore the possibility of a return of one of the children. If the adoptive placements are still subsisting then I also accept that your clients would continue to hold parental responsibility for the children. However, in the light of your clients’ apparent disengagement from the assessment process and demand for the immediate placement of M, and in the light of the Authority’s views on the appropriateness of such a step ahead of the conclusion of that work, the Local Authority has been obliged to review the status of the parental responsibility arrangements for the children. As you will be aware, undersection 25(4) of the Adoption and Children Act 2002 the Authority may determine that the parental responsibility of any prospective adopters is to be restricted to the extent specified in any such determination. In the light of your clients’ position the Local Authority has determined that, to the extent that they may continue to hold parental responsibility for the children, that responsibility shall be limited to the extent that it shall not be exercised so as to require either child to be returned from their current placements.”
“18. On 21 July, we had reached crisis point and we sent an email to the local authority asking for both of the girls to be accommodated in foster care. This email is attached at “[email (2)]”
“16. … for a notice to be given under section 35 ACA 2002 the intention of the notice giver must be to end the placement permanently and a request for temporary respite care is not sufficient. I accept that it is not necessary for adoptive parents to have a detailed knowledge of the legal niceties of section 35 ACA 2002. They must intend, no more, no less, to bring about the consequence of section 35(1) ACA 2002 i.e. for the children to be returned permanently to the local authority and no longer placed with them.”
“16. I have read that email carefully in the context of the earlier and later correspondence and in the light of the conduct of the parties. I accept the submission that one should approach messages sent in fraught circumstances with caution and should be slow to import a meaning that brings about far reaching and drastic consequences where this was not clearly intended. … 17. It can be seen that the test for what constitutes a notice under section 35 is a question of law but that whether a specific communication satisfies that test is a question of fact. 18. I have reached the clear factual conclusion that the email of21 July 2020 was a notice under section 35 ACA 2020 and as such brought the placement of the children with the prospective adopters to an end. I have come to this conclusion for the following reasons: i) The local authority had repeatedly told the prospective adopters that it would not countenance the children being separated at this time. In the words of counsel for the local authority it was either both of the children or neither of the children. In the context of the ever-deteriorating behaviour from G and the crisis between 18 and21 July 2020 it is clear that the prospective adopters had finally reached the conclusion that it was best for them to care for neither of the children rather than to continue caring for both children together. This explains why they now asked for M, who was far less challenging, to be cared for by the local authority as well as G; ii) The email uses the language and tone of permanence. It is not caveated in any way nor does it make any suggestion, even implicitly, as to the prospect of the children returning to the prospective adopters. The prospective adopters had come to the end of the road. “That is it,” they say; “We are no longer able to continue”
“28. The scheme is completely logical in circumstances where following a placement order (a) a child has been placed with adoptive parents; (b) the child is actually living with them; but (c) the local authority has decided to end the placement. It is clear, however, that the framers of the legislation did not contemplate the scenario (which, for the purposes of this part of the judgment I assume to be the case) where the child is not living with the adoptive parents but has been returned to the local authority for a period of respite care. 29. Assume that during this period of respite care the child made revelations of serious abuse by the adoptive parents. Mr Wilson, counsel for the applicants, argues that in such circumstances the local authority either has to return the child to the adoptive parents and then initiate the section 35 procedure to get the child back a week later; alternatively the local authority has to apply, in reality against itself, for an emergency protection order or interim care order. I cannot accept this submission which has an air of unreality about it. 30. In my judgment, in this scenario it is obvious that the local authority has the power to decide to terminate the placement. As the child is already with the local authority there is no need for notice to be given to the adoptive parents. The local authority therefore just makes the necessary decision. That decision would be challengeable in judicial review proceedings or in freestanding human rights proceedings. That, in effect, is what has happened in this case. The applicants sought the return of M on14 August 2020 . The local authority declined to return her and in making that decision they tacitly made the decision to terminate the placement. That decision is challengeable in the ways I have indicated. The applicants have decided to go down the route of a freestanding human rights application. In this scenario the application would fall to be determined on an interim basis on its merits using the conventional criteria applicable to such applications. 31. I reject the submission that the local authority has retained M “unlawfully” since14 August 2020 . Again, this is a submission which seems to me to be tinged with unreality. The local authority has retained M pursuant to its overarching parental responsibility. The applicants lost their parental responsibility when the local authority made its tacit decision on14 August 2020 . The fact that they later made an adoption application does not alter the legal position. 32. Were this situation to arise again in the future it would be better that the decision to terminate the placement should be explicitly set out in a fully reasoned letter rather than being made tacitly.”
“35 Return of child in other cases (1) Where a child is placed for adoption by an adoption agency and the prospective adopters give notice to the agency of their wish to return the child, the agency must (a) receive the child from the prospective adopters before the end of the period of seven days beginning with the giving of the notice, and (b) give notice to any parent or guardian of the child of the prospective adopters’ wish to return the child. (2) Where a child is placed for adoption by an adoption agency, and the agency (a) is of the opinion that the child should not remain with the prospective adopters, and (b) gives notice to them of its opinion, the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency. (3) If the agency gives notice under subsection (2)(b), it must give notice to any parent or guardian of the child of the obligation to return the child to the agency. (4) A prospective adopter who fails to comply with subsection (2) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both. (5) Where (a) an adoption agency gives notice under subsection (2) in respect of a child, (b) before the notice was given, an application (i) for an adoption order (including a Scottish or Northern Irish adoption order), (ii) for a special guardianship order, (iii) for a child arrangements order to which subsection (5A) applies, or (iv) for permission to apply for an order within subparagraph (ii) or (iii), was made in respect of the child, and (c) the application (and, in a case where permission is given on an application to apply for an order within paragraph (b)(ii) or (iii), the application for the order) has not been disposed of, prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders. (5A) … (6) …”
“18. On 21 July, we had reached crisis point and we sent an email to the local authority asking for both of the girls to be accommodated in foster care. … By 1pm, still no one from the local authority had been in touch to discuss the incident from the previous evening.” “20. Making the request that day for temporary accommodation was the only thing that we could do to keep M safe in light of the local authority refusal to move G. We had only ever intended this to be a respite placement. It was not our intention to terminate the adoptive placement for either of the girls and the local authority did not take this email as such. This is clear from the email we received in response from the social work Team Manager, [Mr S] attached at “[email 6]”
“If you cannot protect us all now at the worst of times, I’m afraid that is it.”