Adopting the blame game

Can adoptive parents sue a local authority for losses caused by a badly behaved adopted child? This was the question that the English Court of Appeal recently considered, when the adoptive parents (‘the claimants’) of a boy, known by the pseudonym ‘William’, claimed that Essex County Council had not fully informed them of William’s behavioural difficulties.

The claimants argued that if they had known of William’s problems, they would never have agreed to let the council place him with them. They sued the council for compensation after William allegedly damaged their home and caused them to suffer psychiatric injury which rendered the mother unable to work.

This case raises a broader issue about the circumstances in which the courts should allow an injured person to recover losses that have been caused by a third party (not the person who is sued). Few would doubt that a person should be entitled to recover damages for his injuries if, in the middle of the night, he had fallen into an unfenced and unlit hole that the council’s workmen had dug in the pavement in front of his house.

In these circumstances the claimant’s injuries would have been caused by the council’s negligence, in failing to take reasonable care not to cause injury to the claimants. In such a case, negligence law plays a desirable role by establishing liability for conduct that was not the fault of the injured person, but was the fault of the person or body that was sued. It enhances personal responsibility by making the defaulting person liable.

But the Essex adoption case is strikingly different. None of the council’s officers had done anything during the adoption process that directly caused the claimants’ losses. The losses were caused by an adopted boy. And in the above example, the injured person did not ask the council to dig the hole – whereas in the Essex case, the ‘injured person’ did ask to adopt William.

Faced with this situation Gavin Millar QC, the claimants’ barrister, relied on the concept of ‘informed consent’ as a means of establishing the council’s liability. He argued that adoptive parents were entitled to be fully informed before welcoming a child into their home and family. To put it legally, he argued that the council had owed the parents a duty of care to supply them with all relevant information, and relevance could be judged by what the council had put before the adoption panel: ‘what’s good enough for the panel is good enough for the prospective adopters’.

As a statement of what should happen, this informed consent argument may well be right. It is difficult to see why an adoption agency should be supplied with information about a child which is not then provided to the parents. (The Court of Appeal was not prepared to endorse the view that ‘what’s good enough for the panel is good enough for the prospective adopters’, and its paternalistic approach fitted in with its description of an adoption as a process of ‘social engineering’.) (1)

But it is one thing to say that full information should be provided to prospective adopters, and quite another to say that legal liability should attach to a council that fails to provide full information. In all walks of life there are many things that could and should be done better, but this does not make it right to impose a legal sanction on conduct that could be improved. This is especially so when the legal sanction enables wronged persons to avoid taking responsibility for their own actions.

The facts of the Essex adoption case need to be carefully considered because, although the trial judge found that some information had not been supplied to the claimants, it would be a travesty to suggest that the claimants did not know the nature of the child that they were proposing to adopt (2).

First, the claimants had stated that while they were not prepared to consider a child with either a physical or a mental disability, or with special educational needs outside mainstream school, they would consider a child who had been physically or sexually abused. Second, social workers visited the claimants to discuss the possibility of William (then aged five) and his sister (then aged two) being placed with them.

Third, the council’s medical adviser, Dr Karen Lehner, wrote to the adoption panel saying that William’s concentration was very poor, he required constant adult supervision, he would test his carers to the absolute limit and would need constant strong discipline with lots of love and firm boundaries. Although the trial judge found that a letter in similar terms had never been sent to the claimants, this same doctor had visited the claimants to discuss the proposed adoption. Fourth, there was then an informal meeting between the claimants, the foster carers, two social workers and the claimants, at which the children’s needs were discussed.

Let us suppose, as the trial judge concluded, that the pertinent information from Dr Lehner about how William would test his carers to the absolute limit had never been either sent to the claimants or discussed with them when she met them. That still does not mean that the council should be liable in law for the harm that William then caused when he was placed with the claimants. To find a legal liability in these circumstances would amount to a finding that the claimants were not themselves responsible for having agreed to William being placed with them.

Yet even on the basis that this information had not been given to the claimants, it was clear that they had agreed to accept a child who had been physically or sexually abused, and that they had had several opportunities to ask council officers and William’s foster carers about William. One could sympathise with the claimants if the council had deliberately misled them as to William’s background and likely behaviour, but this was never part of their case. Liability, it was argued, attached to the council merely because of its negligence and not because of any deceit. In layman’s language, this legal argument meant: something has gone wrong here for which we, the claimants, are not responsible and somebody else is.

A further fact illustrates the claimants’ desire to play the blame game. William and his sister were placed with the claimants in February 1996. Only later did the claimants, of their own choosing, apply to adopt both children. Nobody made them apply to adopt; indeed about one-fifth of placements nationally never proceed to an adoption (3). But the claimants proceeded with the adoption, which was not concluded by the court until May 1997 – by which time William and his sister had been living with the claimants for over 14 months.

When asked in court why he had not sought support from social services during this 14-month trial period, the adoptive father said ‘I was too proud’ and ‘I got to the point of thinking he is my child, although not yet legally adopted, and I am going to sort these problems out’ (4). Such comments are understandable and admirable, but how can somebody on one hand accept responsibility for dealing with a problem, and on the other subsequently seek to blame another party?

In December 2002, the trial judge in the High Court allowed the claimants’ case to succeed, but limited their damages to the 14-month trial period (5). The council appealed and the claimants cross-appealed on the grounds that they should be entitled to damages beyond the 14-month period. The Court of Appeal dismissed the council’s appeal, but also limited the claimants’ entitlement to damages to those arising during the 14-month trial period. Pending any further appeal to the House of Lords, damages will now be agreed or assessed by the court at a later date.

Insofar as it hints at the way that prospective adopters should accept responsibility for their own actions, the Court of Appeal judgement is to be welcomed:

‘Prospective adopters are proposing to be parents. They are the child’s new “family for life”. They must be prepared to regard themselves as parents in every sense. While very few parents have to face the extraordinary problems which William’s parents have had to face, all have to be prepared for downs as well as ups. And those downs can include physical damage to the home, physical harm to the parents, and psychiatric illness in the parents. Secondly, prospective adopters are not passive recipients of the agency’s services. They are actors in the story. They have a trial period within which to get to know the child and adjust to the enormous upheaval of having a new person in their lives.

‘It is all too understandable that prospective adopters, like the claimants in this case, who have been waiting for a long time to have a child offered to them, are eager to accept what looks like a suitable proposal when it is put to them. It is understandable that they should feel committed from a very early stage. But the system could not work as it is meant to work if the prospective adopters did not keep a cool head and ask themselves seriously during that period whether they were willing and able to carry it through.’ (6)

Having regard to these factors and the statutory framework that establishes the adoption process, the Court of Appeal concluded that the council did not owe a legal duty of care in relation to the contents of the forms and reports that are made during the adoption process. Yet the Court of Appeal did not take the principled step of stating that an adoption agency does not owe a legal duty of care to prospective adopters – in any circumstances.

And having left the door ajar, it went on to open it for the Essex claimants, by holding that the council did owe a legal duty of care to communicate information that it had decided to give. This smacks of a judicial compromise: making it difficult for most prospective claimants to succeed in suing an adoption agency, while finding a way to allow this particular claim to succeed.

So, future claims by prospective adopters are unlikely to be made, unless an adoption agency decides to give the prospective adopters information that it then omits to send them. But this case has already done enough damage to the notion of personal responsibility. The claimants have succeeded with this claim by seeking to avoid responsibility for their own decisions and actions. By allowing this claim to succeed, even on the narrow basis that various documents went astray in the post, the Court of Appeal has allowed the law of negligence to enable aggrieved claimants to win compensation by playing the blame game.

In response to this abnegation of personal responsibility, the UK government has introduced a raft of measures that will further regulate and bureaucratise the adoption process. When the children’s minister, Margaret Hodge, introduced the new regulations, the Department for Education and Skills said the aim was to prevent repetition of the case brought against Essex county council (7). To this end the new regulations require adoption agencies to appoint an ‘adoption support services adviser’ whose role will be ‘to give advice and information, to persons who may be affected by the adoption or proposed adoption of a child’.

The regulations then spell out, as if they are intended to be followed by nincompoops, that the adoption agency should only appoint somebody with sufficient knowledge and experience of the process of adoption and of the effect of the adoption on prospective adopters (8). Since the trial judge in the Essex case effectively found that the council had failed to put a stamp on an envelope or had failed to put a letter in a letter box, it is surprising that Hodge’s department did not use the new regulations to explain how to send a letter.

Nobody knows how their kids will turn out – whether they are adopted or not. In seeking to play the blame game, the adults in this case have set in motion the bizarre and worrying notion that child-rearing, like road maintenance, can come with professional safeguards and guarantees. Neither the law of negligence nor the government should be sanctioning this irresponsible approach.

Jon Holbrook is a barrister. Email Jon.Holbrook@BTinternet.com

(1) A & Anor v Essex County Council [2003] EWCA Civ 1848, 17 December 2003, paragraphs 53, 72

(2) See A & B v Essex County Council [2002] EWHC 2707 (QBD), 18 December 2002

(3) See Partial victory for ‘vicious’ child’s adoptive parents, Guardian, 18 December 2002

(4) Adoption case father supports son, BBC News, 18 October 2003

(5) See A & B v Essex County Council [2002] EWHC 2707 (QBD), 18 December 2002

(6) A & Anor v Essex County Council [2003] EWCA Civ 1848, 17 December 2003, paragraph 55

(7) See Minister pledges more support for adoptive parents , David Batty, Guardian, 6 November 2003

(8) Adoption Support Services (Local Authorities) (England) Regulations 2003, Statutory Instrument 2003 no 1348, regulation 4