Calling all family practitioners…

What is the most ‘enduring’ or ‘the longest-lasting relationship’ you have…? It is with your siblings!

Background:

The case of Re H [2010] EWCA Civ 1200 revisited two important and developing principles in family law.  The first is a child’s right to know who is within their family, an issue that is likely to become more significant as the dynamics of family life in today’s society are ever evolving and changing.  The second is the significance and importance of sibling relationships.  Both of these issues form part of the child’s wider right to a private and family life.

The principle of a child’s right to know their background has significantly developed over recent years.  From the historical paternalistic approach of “protecting” children from the truth about their background, including not telling them about the fact of their adoption, in many cases until adulthood or even at all, to a far more open way of thinking in society today.  In adoption cases now it is common practice for detailed life story work to be done with children explaining to them where they have come from and the fact of their adoption together with real information about who their birth parents were and who else was in their family.

The right of a child to have key information in respect of their identity or other significant circumstances has for many years been recognised as one of the factors for consideration when having regard to the child’s emotional needs.  As Ward LJ recognised in Re H (Paternity : Blood Tests)  [1996] 2 FLR 65:

Every child has a right to know the truth unless his welfare clearly justifies the cover-up. The right to know is acknowledged in the UN Convention on the Rights of the Child … and in particular article 7 which provides “that a child has, as far as possible, the right to know and be cared for by his or her parents” … the clear intent of the article is that there are two separate rights, the one to know and the other to be cared for by one’s parents.

The cases in which the court will determine that a child should not be told the truth about their identity (and their wider family members) are likely to become even less frequent with the rapid onset of new technology and the reality that children may well inadvertently discover information about themselves and their backgrounds through the use of websites such as Facebook. It is obvious that to discover the truth about one’s background by accident is almost certain to be harmful to any child and it follows therefore that importance of a child knowing at an early stage, the truth about their background and identity is almost certain to outweigh any argument about potential harm in them having such information. As Lord Justice Thorpe identified in the case of Re H, (above) the right to have knowledge about the members of one’s family and the potential that that will bring for one to have a relationship with those wider family members is an important part of the Article 8 right to a private and family life.

One’s sibling relationship is likely to be the longest relationship in one’s life and this must be a factor recognised in determining issues in respect of sibling contact and knowledge of siblings.

Current approach:

You may ask what has changed since 2010? The answer appears to be; fundamentally, very little.

These relationships are becoming an increasingly significant and relevant factor for consideration in care and adoption proceedings. Yet, as things currently stand the weight given to them and their importance, can still easily disappear and become somewhat lost amongst other considerations when a Final Order, of whatever nature, is being made. However, it is at least now better recognised that decisions which involve determining children’s futures and the relationships with their siblings can be the most difficult to make. Judges reported to Birbeck’s Professor Daniel Monk, who led the research, that decisions concerning placements which require separation of siblings can be ‘the most difficult’ and ‘heartbreaking’.

There is a lack of clarity in statute (Children Act, Adoption Act) to describe what is meant by ‘siblings’, and this is continued in practice. There is very little in current statute which gives clarity, enables or supports siblings rights. It has become more common to seek for a ‘sibling assessment’ to be carried out by Social Workers or Psychologists, but as yet there is no standard format for these assessments. It is of concern to many that these assessments, at this time, seem to act as a support for decision making rather than a useful guide to better decision-making. There appears to be an ambivalence about the meaning of the right to respect for family and private life under Art 8 of the European Convention on Human Rights especially where this involves siblings.

A report funded by the Nuffield Foundation and published in November 2018 – ‘Siblings, contact and the law; an overlooked relationship?’ (www.nuffieldorganisation.org) highlights the significance of these relationships, the risks of siblings losing touch, despite there being recognition in the profession of the importance of these relationships. The disquiet about the breaking of these bonds which has been expressed by Parliamentarians, the UN Committee on the Rights of the Child, members of the Judiciary and even the young people themselves, has unfortunately still not provided us with any government data about the extent or long term damage that may have occurred in the event of sibling separation.

As practitioners in the Family Courts, we recognise that contact between siblings is highly important theoretically, but in practice for several reasons it is not easy or straightforward.

Whilst there are attempts to move towards more ‘open’ adoptions, the concern remains that once a child is adopted, direct contact with birth relatives (which may include siblings) will be virtually impossible to maintain. This appears to be sustained by a widespread assumption that the stability of an adoptive placement will be undermined, and that the expectation of maintaining these relationships and contacts post adoption will deter potential adopters and can only happen if the proposed adoptive parents agree prior to the adoption.

This assumption could be said to be displayed by the Courts apparent deep reluctance to use existing legal measures to order contact. Generally, in practice, it is more often than not left to the adopters and the local authorities to determine. This perhaps follows the aforementioned assumption that a strong message from the Court will deter potential adopters, as well as possibly undermine the security of adoption. It could be argued that this approach of the Courts is the most serious risk to the continuity of sibling relationships.

By contrast, where a final placement for a child is either within the Family or under a Special Guardianship Order, contact between separated siblings is more likely to take place. However, even in such placements this can be difficult to arrange and maintain, particularly when the Local Authority is no longer in the picture and is no longer supporting the contact arrangements. An additional barrier can be that the contact often is not encouraged or supported in the long term, and without the Court making specific contact orders, may not continue. However, there still appears a reluctance by the Courts to make formal orders in relation to sibling contact for fear of potentially ‘undermining’ the placement or adding obligations on to the family carer.

The professionals who could play an important and crucial role in ensuring that contact arrangements specific to a sibling group are fully detailed in a Care Plan are the Guardian, and, critical for ensuring that contact is maintained, is the Independent Reviewing Officer. Which leaves the question to be considered about the capacity of both of these individuals to fulfil their roles in this regard, given that it could be argued that they are not currently doing this. What support should be put in place, and what additional guidance can and should be given to them?

The following are the report’s (‘Siblings, contact and the law; an overlooked relationship?’ (www.nuffieldorganisation.org)) key recommendations, as summarised by the Chairman Sir Ernest Ryder, following discussions from the floor at the launch of the report:

To consider the inconsistency and lack of coherence in references to siblings, we recommend a review of primary and secondary statutory material by the Department of Education and Parliamentary Counsel. In particular to:

i) Clarify references to step siblings in child and adoption law

ii) Remove references to ‘blood’ in definitions of siblings in the context of adoption

iii) Consider developing internal drafting guidance about siblings

To be attentive to children and young people’s own understanding of their sibling relationships, we recommend that professionals recognise that the word ‘sibling’, along with distributions such as half, full, step and foster, can make children fearful that relationships with their brothers and sisters are not fully appreciated. We recommend wide dissemination of the Family Justice Young People’s Board Top Tips for professionals when working with brothers and sisters.

To ensure consistency in practice, we recommend further research about allocation and gatekeeping practices in the Family Courts in cases involving sibling groups.

To strengthen the existing presumptions about contact between ‘looked after’ siblings, we recommend extending to siblings the existing duty on local authorities in s 34(1) of the Children Act 1989 to allow all ‘looked after’ children reasonable contact with their parents

To ensure that children and young people are aware of and more able to exercise, their rights to make applications for contact orders with their siblings, we recommend:

iv) The removal of the requirement in ss 10 and 34 of the Children Act 1989 that siblings must first apply for permission to make an application

v) That at the end of care proceedings, children’s solicitors provide advice about the possibility of applying for contact orders, particularly where contact arrangements are stipulated in care plans or recitals

To clarify the circumstances in which it is appropriate to make contact orders under ss 26 and 51A of the Adoption and Children Act 2002, we recommend the provision of judicial guidance.

To enhance rigour in the assessment of sibling relationships and to emphasise the importance of reflexiveness in the application of assumptions, in particular about age, ‘attachment’ and ‘parentification’, we recommend:

vi) Wide dissemination of Beyond Together or Apart: Planning For, Assessing and Placing Sibling Groups (Beckett, CoramBAAF, 2018)

vii) A review of the existing provision of professional training about sibling relationships for social work and legal practitioners.

What role can family practitioners play? We could bring this report to the attention of the court where appropriate in a final hearing. We could try to ensure that sibling relationships are given priority and are properly considered. We could encourage the Courts to use their legal powers to the maximum, to ensure that no matter what the placement outcome, by understanding that sibling relationships are the most enduring relationship that a child has, that it may be vital to maintain these via good contact arrangements, (set out in Child Arrangements Orders if necessary), which allow those relationships to continue to grow and flourish.

We could also attempt to break the apparent assumption that a ‘closed adoption’ is in the best interests of a child, and the proposed adopters. It seems to me that if it is the case that paramountcy principle (and we are told it is the case), that the welfare of the child, both now and in the long term, is what is most important, then consideration of future sibling relationships should be the ‘gold standard’ which we should seek to achieve for every child involved in care proceedings.