What connection can there be between the formal process of child adoption and eDisclosure / eDiscovery? Adoption is in the UK news at the moment as a result of a report by Martin Narey, former head of the Prison Service and now the ministerial adviser on adoption. The report adds flesh to the bones of the common perception that social workers responsible for placing children for adoption are erecting unnecessary barriers by their resistance to trans-racial placements. Most of those who wish to adopt are white; most of the children needing to be adopted are non-white. If social workers see it as essential to match the race, colour and culture of children and adoptive parents, then the scope for alignment is very small. They claim, apparently, to be trying to meet the courts’ expectations as to evidence. You may see the connection between these two apparently unrelated subjects.

To most of us, the matching requirement is not merely stupid nonsense but wicked nonsense. The inevitable result is that people desperate to adopt are made to go through multiple layers of the hoops and hurdles which are the specialist subject of low-grade public servants whilst children are left in care and deprived of the love and attention which they desperately need. Social workers dealing with children attract public attention only at the extremes – either by neglecting a child who should be removed from its parents or by destroying perfectly good families because some overbearing pocket tyrant takes against the parents on often spurious grounds. There are many fine people in between, but there are also many whose political correctness, bent towards social engineering and pipsqueak bloody-mindedness make them erect barriers against what is supposed to be their objective.

That identifies already two characteristics in common between the social worker dealing in adoption and the lawyer handling electronic discovery – if there is anything worse than the lawyer who, whether deliberately or through incompetence, fails to give adequate disclosure, it is the one who gives too much; there are many lawyers whose obsessive compliance with a formalised perception of the rules makes him or her plod remorselessly through the discovery process at great expense without any regard to the true objective. That brings us to a third parallel, one identified by Martin Narey in The Times yesterday. He said this:

Having spent the past few weeks talking to more social workers, I understand better the extent to which their caution in pursuing adoption – of which I remain critical – is influenced so much by their perceptions of what court will demand in terms of evidence.… My discussions since the report’s publication confirm my uncomfortable conclusion that, even when it is patently in the best interests of the child, we have a system that is better at thwarting adoption than achieving it. That has to change.

Do you recognise this situation? Many lawyers are striving for a degree of perfection in their discovery, and thereby standing in the way of the objectives of client and court, because they do not understand properly what the court expects from them. We see it, in the US at least, in massive preservation exercises which bear no relation to the potential requirements of any court; we see it in lawyers who fail to distinguish between blameworthy omission, on the one hand, and a rational exclusion of a source, category, date range or custodian on the other; we see it in a blind refusal to consider the use of technology and other new ways of working. There are other drivers here, of course, not least the lawyers’ own interest in over-disclosure and in retaining inefficient means of managing discovery, but the one they will admit to is a fear of being criticised by the court. That makes a good cover, too, for the social workers’ imposition of their own prejudices on to the adoption process.

The parallels diverge at this point – the incompetent lawyers are merely throwing away their clients’ money where the social workers are ruining lives by their unwillingness to look outside their plodding procedures and their prejudices and focus on the objectives.

Clients can change their lawyers, and many of them should. Prospective adopters and the children have no such luxury. The remedy, in both cases, is the same. It is for the courts to make it clear what they expect in order to get them to the objectives – in discovery terms the “just, speedy and inexpensive” requirement of the Federal Rules of Civil Procedure or the “overriding objective” of the Civil Procedure Rules, and in adoption the matching of adoptive parents with children as quickly as is consistent with prudence. The recent report on discovery published by the Australian Law Reform Commission identifies lack of judicial consistency and the consequent uncertainty of the parties as a major component of the problem. If, like too many of the adoption social workers, the lawyers are aiming for the wrong targets, then it must be for the courts to clarify what those targets are.

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