LORD JUSTICE THORPE: On 8 June 2006 HHJ Norrie, sitting in the Brighton County Court, heard an adoption application brought by Mr and Mrs C in respect of a large family of children: B, 14; S, 11; E, ten; J, eight and G, three. G has since by agreement changed his name from GS to TC. I will hereafter refer to him as T. All these children are the children of VS, who was the first respondent to the application. All of the children bar T are the children of WC. T’s father has taken no part in the proceedings. The other parties to the application were the children’s guardian and the local authority, the West Sussex County Council.

The judge heard some oral evidence, certainly oral evidence from Mrs C and the guardian and expressed her conclusions in the middle of the afternoon in what was a very brief judgment. She refused the applications in respect of all the children and made joint residence orders to the applicants in lieu. The local authority had carried out special guardianship assessment in relation to T and would have supported a special guardianship order in respect of him but Mr and Mrs C had the clear position that they wanted to adopt T and they did not want a special guardianship order in respect of him.

The order made by the judge was the subject of an appellant’s notice which was received out of time on 27 September. Scott Baker LJ considered the application on paper and on 15 November granted permission, stating that there were in the appellant’s skeleton matters of concern. The fundamental question, he said, seemed to be whether the judge had reliable evidence about the children’s wishes and feelings and why she relied wholly on the guardian’s conclusion that the children did not want a change of status. That concern I fully share and, accordingly, record briefly what the evidence was as to the children’s wishes and feelings.

There had been schedule 2 reports prepared by the local authority and those reports showed that the children were clearly supportive of the plan for adoption; they wanted to be adopted. Following meetings between the guardian and the children a different perspective emerged. The guardian filed a comprehensive and very professional report, recording her meetings with the children and indicating that what they really wanted was the continuation of a compromise world in which they had both the security of living in the C household but also continuing attachment to Mrs S and that assessment formed part of the guardian’s overall conclusion that this was not an appropriate case for adoption orders.

Following her meetings Mr and Mrs C were convinced that any shift in the children’s position resulted from the guardian having given the impression that, if the adoption order was made, they would lose all contact with their mother, Mrs S. They expressed these concerns to the social worker in the case, who wrote a formal letter of complaint to CAFCASS as to the manner in which the guardian had conducted her conversations with the children. It seems that the letter was written without any prior discussion either with the social worker’s line manager or with the guardian and in December a letter was written from the local authority withdrawing the complaint and explaining that it had perhaps been too hastily submitted.

However, these events led Miss Taylor, the solicitor instructed by the guardian, to undertake her own assessment and accordingly on 5 February 2006 she visited the home and spoke to the children and came away with the same impression as the guardian. That was no doubt reassuring to her. However, we have not been shown any evidence before the judge from Miss Taylor as to her conversations with the children. There is a brief mention in the guardian’s first report (where she is chronicling the steps taken in the course of investigation) to the meeting, but there does not seem to be any evidence as to the conversation or the gist of the conversation presented to the judge.

There was then the evidence of Mr and Mrs C, particularly Mrs C, in which they emphasised their certainty that the children were a hundred per cent behind the adoption plan and were keen to see the adoption order made. The judge, it must be said at once, was unaware of the letter of complaint to CAFCASS or its subsequent withdrawal. She was unaware of that because counsel for the local authority was himself unaware. The guardian, of course, had knowledge, but quite understandably did not think it necessary to raise it, since the complaint had been withdrawn. The applicants, Mr and Mrs C, were not represented, for the very good reason that they are not eligible for public funding, and it did not form any part of their case.

Even making due allowance for that consideration, the judge still had to deal carefully with the children’s wishes and feelings, given their age -- particularly B’s age of 14 -- and given that on the evidence before her there was a conflict between what was said in the schedule 2 reports and what was said in the guardian’s report. Additionally the judge had the oral evidence from the applicants which fully supported the tenor of the schedule 2 report. The judge’s treatment of this very important factor is completely inadequate. All she says in the course of her brief judgment is:

“I deal with the aspect first of all, the wishes and feelings of the children, taking into account their varying ages going from nearly 14 going down to 3. […] The guardian’s report recites the conversations she has had with the children about their wishes and feelings regarding their mother and insofar as possible, about the effect of adoption. Those conversations are recited in the first report, they are also referred to in the submissions and positions statements of the mother and the guardian.

“In evidence the guardian was questioned about these expressed feelings and described them as having come from the heart and that the children expressed strong feelings for the mother.”

That is a most unsatisfactory summary of the evidence because it omits in its entirety any reference to the schedule 2 reports and to the oral evidence of the applicants. Plainly the judge, even without having knowledge of the social worker’s complaint and withdrawal of complaint, had to focus on the fundamental difference of impression as between the guardian on the one hand and the social worker, the writer of the schedule 2 report supported by the parents. The judge had had oral evidence from Mr and Mrs C. She made no findings at all as to credibility and reliability. Very simply, there is no canvas in the judgment of the evidence both written and oral, and these deficiencies have been implicitly conceded by Mr Agar who appears for Mrs S. Mr Woodward-Carlton for the local authority has properly taken a position of some neutrality. Miss Taylor, who has appeared for the guardian, has endeavoured to support the judge and to suggest that the deficiencies are not fatal, given that they go only to one factor and not a paramount factor in the statutory duty imposed on the judge.

With all respect to Miss Taylor’s efforts, the deficiencies are plain on the face of the judgment. They go to a factor which is of great importance, particularly given B’s age. Our anxieties must be reinforced by the fact that three of the children have written letters to Mrs Taylor, Miss Taylor’s instructing solicitor, of very recent date in which two of them unequivocally express their desire for adoption.

Accordingly, the only possible outcome is to set aside the conclusion -- possibly the orders need to be left on foot during the interval -- but to direct a retrial of the applications in regard to the older children.

I turn now to T’s quite separate position, since during the preparation of the appeal an agreement has emerged between the relevant adults, Mr and Mrs C and Mrs S, that an adoption order should go in relation to T. The local authority is neutral on the position. The agreement is challenged by the guardian, who submits that this court should not make the adoption order sought. Miss Taylor has freely conceded that on the face of it the order would be manifestly in T’s interests, as the statute says, “the court’s first consideration must be given to the need to safeguard and promote the welfare of the child throughout his childhood.” The permanence, security and stability that an adoption order in relation to T achieves would most plainly safeguard and promote his welfare. As to contrary considerations, Miss Taylor could really think of nothing much beyond the obvious loss of the parental link, the family link to his biological mother, but since that consequence is agreed between the relevant adults it does not seem to me to weigh very heavy in the scale and certainly nowhere near as heavy as the weight in favour of the order.

We are told that the detail of post-adoption contact between T and Mrs S is the subject of discussion at the Bar and I would hope that it can be agreed and incorporated in the order which this court makes today. It would be very helpful to the associate if the entire order could be agreed at the Bar, reduced to writing and handed in.

The fundamental order will be an order allowing the appeal and remitting the application for trial in the Brighton County Court by another judge, the designated judge if available, and the adoption order in relation to T will be made since, clearly, it promotes his welfare and since the consent of his natural parent is recorded.

LORD JUSTICE SCOTT BAKER: I agree this appeal should be allowed and with the orders proposed by my Lord.

LORD JUSTICE MAURICE KAY: I also agree.