The terrible story of Elsie, a toddler killed by her adoptive father, has understandably caused outrage, but a deeper issue lies at the heart of this distressing case which suggests that the council who placed her could be to blame for her death.
Matthew Scully-Hicks, Elsie’s adoptive father, was jailed for life this week with a minimum term of 18 years for murdering the 18-month-old toddler.
Elsie’s biological family fought to take care of Elsie before she was eventually adopted. Her birth grandmother, Sian O’Brien, launched proceedings in the family court to become her legal guardian when she was two months old, but was turned down because social services said she would not be able to cope. Ms O’Brien was already looking after Elsie’s two teenage siblings, and felt that it would be best for the children if they were all together.
There is no indication from any media reports that social services considered offering Ms O’Brien help so that the children could be together, despite this being a required consideration before taking the frowned upon step of separating siblings.
And yet, despite the adoption, the family had hoped that Elsie would be returned to their care. They were not informed of her death until four months after she had been murdered.
Elsie’s grandmother, speaking about the case:
“A person who had been deemed by the authorities to be a fit and proper person to bring up my granddaughter was responsible for her death, and they took her from me telling me I would be unable to cope.”
Scully-Hicks will now be sent to prison for the fatal injuries he inflicted and an independent review will examine the circumstances of Elsie’s death and whether social workers and doctors could have prevented it, but another more pressing question is being ignored. Is the local authority who placed Elsie with her adoptive parents also responsible for her death?
A recent landmark ruling suggests it may be.
In October of this year, the Supreme Court made history by confirming that local authorities were vicariously liable for children suffering abuse at the hands of their foster parents. Whilst the ruling distanced itself from connecting the local authority’s pivotal role in recruiting, selecting and training the foster parents to any duty of care, the judgment makes it clear that councils who “provide[d] care to [a] child as an integral part of the local authority’s organisation of its child care services,” are liable for any harm suffered at the hands of ‘parents’ they select to care for that child.
Though foster parents and adoptive parents are in some ways distinctly different – mostly in relation to the duration of time they care for a child – there are several, important similarities which build a strong case for local authority liability in cases likes these.
Whilst some adoption agencies run independently of local authorities, most are part of the local authorities’ children’s services. What this means in practice is that those agencies who are not independent, are effectively part of a local authority.
And just like fostering agencies, adoption agencies are also tasked with preparing and supporting prospective adopters. It is their duty, then, to make sure whoever they select and train to adopt a child is competent to do so.
This post is primarily concerned with local authority run adoption agencies, because we are assuming for now that it was a council that placed Elsie, but that’s not to say voluntary agencies should not be potentially liable for child injuries or deaths arising from their placements.
If we were the O’Brien family’s legal team, not only would we think about pursuing a claim against the local authority, both for Elsie’s death and the added trauma they may have suffered by not being told of her death until months after she passed away, but we would also seek to set a new precedent which matches the recent ruling handed down by the Supreme Court.
Whether a foster carer or adoptive parent, the roles are the same. And so too, must be the rules protecting children who experience either.