A (a minor), Re

The present status of the proposed appellant is that of a foster mother and I will so describe her. At the centre of her proposed appeal is a girl, A, who was born on 9 March 2007 and is thus aged nine months. Coventry City Council (“Coventry”) placed A with the foster mother on 15 March 2007, i.e. when she was six days old. The foster mother has cared for A ever since. When A was placed with her, she accepted that it was a short-term foster placement. Now, however, she wishes to adopt A, in respect of whom on 17 October 2007 the family proceedings court in Coventry made a placement order authorising Coventry to place her for adoption. Coventry do not agree that a continued placement with the foster mother is the optimum adoptive placement for A. On 23 November 2007 His Honour Judge Bellamy in the Coventry County Court refused the foster mother leave to apply for an adoption order in relation to A. Such is the order under challenge in this court.

The foster mother’s application for leave needed to be heard extremely quickly; and congratulations are due to the foster mother’s solicitors, Rotherham and Co., Coventry, and to the county court in Coventry for enabling such to be achieved. The urgency arose as a result of the fact that on 7 November 2007 Coventry’s permanency panel approved the match of A with other proposed adopters and that thereupon Coventry devised a programme for A to be introduced to them on 20 November, to spend time with them on each of the following five days and to move permanently into their home on 26 November 2007. For reasons which I will explain, the foster mother started her search for legal assistance on 12 November; and, when on 20 November she approached Rotherham and Co., they offered her an appointment on a publicly funded basis on the following day. Although on behalf of the foster mother they formally issued the application for leave on 23 November, it was on 22 November that they informed the court of the intended application and persuaded it that, in the light of its extreme urgency, it should be listed for hearing before the judge on the afternoon of 23 November. Also on 22 November Rotherham and Co informed Coventry of the proposed application and of the hearing on the following day; and they gave the same information both to the solicitors who had been representing the natural mother (whom I will describe as “the mother”) in the recently concluded proceedings for a placement order referable to A and also to the CAFCASS officer, Mr Sanga, who had acted as A’s Children’s Guardian in those proceedings.

It seems clear that the mother was properly made a respondent to the foster mother’s application for leave: for the placement order did not eliminate her parental responsibility for A and so she was a necessary respondent to the application pursuant to Rule 86(4)(b)(ii)(bb) and to Rule 23, Table 2, of the Family Procedure (Adoption) Rules 2005, SI 2005/2795. It was also probably correct that A herself, whether acting by Mr Sanga or by another Children’s Guardian, was not made an initial respondent to it: for although, by Rule 86(4)(b)(ii)(bb) any person who would be a party to the substantive application if leave to make it were granted should be a respondent to the application for leave, Rule 23, Table 2, provides – so far as relevant – that a child should be a respondent to an application for an adoption order only if a Children and Family Reporter recommends that it is in the best interests of the child to be a party and such recommendation is accepted by the court. So I suppose that one cannot say at the time of issue of the application for leave that the child “would” be a party to the proposed application for an adoption order. The court may however at any stage direct that the child, like any other person, be made a respondent to the application for leave: Rule 86(4)(c).

In the event appearances before the judge at the hearing on 23 November were only by Mr Goodwin of counsel on behalf of the foster mother in support of the application for leave and by Miss Potter of counsel on behalf of Coventry in opposition to it. Nevertheless the judge was informed of the stance in relation to it taken by the mother, as a respondent to it, and, albeit only broadly, taken by Mr Sanga as A’s former Children’s Guardian, notwithstanding that she was not a respondent to it.

The stance of the mother was communicated to Rotherham and Co. by a letter dated 22 November 2007 from the solicitors who had represented her in the placement proceedings; and the letter was shown to the judge. In it they explained that it would not be possible for them to arrange for the mother’s representation at the hearing; that, while she had not consented to the making of a placement order, she had always indicated to Coventry and indeed to the family proceedings court that, were A to be adopted, her preference would be for the foster mother to be the adoptive parent; and that accordingly the mother supported the foster mother’s application.

The stance of Mr Sanga was communicated to Mr Pendle at Rotherham and Co. by telephone on 22 November 2007 and was duly relayed to the judge by the production of Mr Pendle’s attendance note of the conversation. Mr Sanga told Mr Pendle that it had been the view of both himself and of the solicitor for A in the placement proceedings, as he had sought to make clear to the family proceedings court, that, in the light of A’s bond with the foster mother and her other children, it would be better for A to remain with the foster mother than for her to be moved to another adoptive family; that he did not consider that Coventry’s objections to the foster mother’s candidacy for adoption held water; that, for example, the mother was aware of the identity of the foster mother and the location of her home and yet had never done anything to disrupt it; that he could not see the relevance of the local authority’s concern that the foster mother’s household was “very busy”; and that accordingly he supported the foster mother’s application for leave.

Although he declined to grant the foster mother permission to appeal to this court from his refusal of leave, the judge properly indicated that she should be granted a short window of time in which to approach this court prior to any removal of A from her. His indication precipitated a pragmatic agreement between the foster mother and Coventry, by counsel, which enabled the foster mother to file an Appellant’s Notice with, again, admirable celerity. The notice led to an immediate direction on my part that the foster mother’s application for permission should be listed for hearing urgently on notice not only to the local authority and to the mother but also to Mr Sanga and on the basis that, were permission granted, the substantive appeal would follow forthwith. Thus it is that, at this hearing, we have had the benefit not only of attendance by leading and junior counsel for the foster mother and for Coventry but also junior counsel for the mother and for A by Mr Sanga as her Children’s Guardian. In effect, at my invitation, A, by Mr Sanga, is an intervener in the proceedings in this court. As before the judge, so before this court: the mother and Mr Sanga support the foster mother’s proposed appeal.

Section 42 of the Adoption and Children Act 2002 (“the Act”) provides as follows:

if subsection (2) applies, the condition in that subsection is met,

if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.

It is convenient at this stage to notice a further, temporal brake on the foster mother’s ability to apply for an adoption order even were leave to be granted to her to make it. The brake arises under s.44 of the Act, which provides as follows:

The researches of counsel do not reveal any reported decision referable to the grant of leave to apply for an adoption order under s.42(6) of the Act. But counsel were in agreement at the hearing before the judge as to the proper approach to any such application; and the judge accepted and endorsed the approach which they commended to him. Equally, before this court, counsel remain in agreement as to it; and, in turn, I consider that we should accept and endorse it. For, notwithstanding the absence of a decision referable to the grant of leave under s.42(6), there is a recent reported decision of this court referable to the grant of leave to apply for revocation of a placement order under s.24(2) of the Act. It is Re M and L, Warwickshire v. M, [2007] EWCA Civ 1084. I would accept and hold that the legal principles relevant to the exercise of the discretion whether to grant leave pursuant to each of the subsections is identical. Thus the welfare of the child is a relevant consideration but, by virtue of s.1(7) of the Act, is not the paramount consideration: see [22] and [24] of my judgment in Re M and L. Another relevant consideration is whether the proposed application has a real prospect of success: see [29] of that judgment. Indeed I there observed:

The foster mother is aged 41 and lives in a six bedroom house in Coventry. Living there with her are five children. These include a natural daughter aged 14 and a natural son aged seven. She also has an adopted daughter, aged about 11, who has been diagnosed as autistic; Coventry approved the foster mother as one of their foster carers as long ago as 1996 and among the many children whom Coventry have since placed in her foster care was this child, whom in due course she adopted with Coventry’s consent. The two other children in the household are A and another young foster child.

There is no doubt that, following her placement with the foster mother, A has thriven in her care and that strong bonds have arisen between A on the one hand and the foster mother and the three older children on the other. In July 2007 the foster mother indicated to Coventry that she wished to adopt A. Coventry’s record of a Family Finding Meeting held on 2 August referable to A records her wish to adopt her but proceeds merely to state:

On 13 September 2007 the social workers duly visited the foster mother and undertook such an explanation. One of them made a note of the reasons which they had given to her for not considering her as an adopter for A. She recorded them as follows:

Thereupon the foster mother contacted an organisation called “Fostering Networks”. On 2 October 2007 the foster mother wrote a very well presented letter to Ms Branson, manager of Coventry’s Permanency Team; and I suspect that the legal helpline of “Fostering Networks” assisted her in drafting it. In the letter the foster mother said:

On 9 October 2007 Coventry held a Looked After Review attended by the foster mother. By then her letter had been duly received. There was an acknowledgment in the record that she had expressed her wish to be considered as an adopter of A but that it was not the plan to pursue such a course and that Ms Branson “will respond to her written interest”. At that meeting, and at other meetings held by Coventry on 11 and 22 October 2007, progress was swiftly made towards the identification of a couple as adopters of A; and on 7 November 2007 Coventry’s Adoption Linking Panel approved such a match.

Meanwhile, namely on 17 October 2007, Coventry’s application for care and placement orders referable to A had been determined in the family proceedings court. I will consider those proceedings in Section C below.

Unfortunately, notwithstanding the request in the foster mother’s letter dated 2 October 2007 for a written response to it and notwithstanding Coventry’s note on 9 October that Ms Branson would provide it, there was delay in its provision. At least, by a holding letter dated 22 October, Ms Branson assured the foster mother that the issues which she had raised in her letter would be discussed within Coventry and that she would receive a written response as soon as possible. But in the event Ms Branson’s substantive letter in response was not even dated until 1 November and moreover was apparently not at once posted, with the result that the foster mother received it only on Saturday 10 November. Ms Branson wrote as follows:

Upon receipt of Ms Branson’s letter, the foster mother sought at once to obtain legal advice. She approached lawyers on Monday 12 November; and, after two firms had in due course informed her that they would be unable to take her case, she approached Rotherham and Co and achieved in effect the almost immediate issue of her application for leave. In their skeleton argument Mr Cobb QC and Miss Potter, who represent Coventry before this court, suggested that the foster mother’s application for leave should be “characterised as extremely late”. I entirely disagree. The foster mother was in my view correct to await the written response of Ms Branson to her fully argued letter dated 2 October 2007, which she had specifically requested and which she had been assured would follow further discussion within Coventry. It is, rather, Ms Branson’s response which in context must be characterised as extremely late. Forthwith upon receipt, the foster mother could not have acted more swiftly in taking legal steps to challenge Coventry’s rejection of her candidacy for A’s adoption.

As I will explain, the judge attached great significance to the nature of the disposal of the issues raised in the family proceedings court. Prior to giving birth to A, the mother had given birth to five children. In December 2006 all five children had been made the subject of care and placement orders. Upon A’s birth Coventry at once took care proceedings referable to her; and it was by virtue of a succession of interim care orders that they were enabled to place her with the foster mother. In due course, after they had concluded that the mother could not adequately care for A even in the long term, Coventry also applied for a placement order referable to her. The applications were listed for hearing before the magistrates on 17 October 2007. A district judge and two lay justices constituted the bench. The non-marital father of A took in effect no part in the proceedings.

I need to survey what was said to and by the magistrates referable to the foster mother’s aspiration to adopt A.

Reference to it was made in Mr Sanga’s report to them dated 3 October 2007. In order to understand some of his comments, it is important to note that the foster mother had indicated that, were she not allowed to adopt A, she could not bring herself to cooperate in her transition to another adoptive home, with the result that she might have to be moved on a temporary basis to a second foster home from which the transition could duly be effected. The foster mother’s stance in that regard may have been understandable in terms of her own emotions but, frankly, it was selfish and, to be fair to her, she changed it soon afterwards. Mr Sanga wrote:

Reference to the foster mother’s aspiration to adopt A was presumably also made in the statements filed in the magistrates’ court on behalf of Coventry, which were not placed in evidence in the present proceedings. There was no express reference to her candidacy in Coventry’s final care plan filed in that court. There was, however, a reference in it that A would “move” to an adoptive placement; and it was in any event obvious to the court that Coventry were not favouring the foster mother’s candidacy. Indeed in her brief oral evidence to the magistrates, of which we have a note, the social worker seems, both in examination in chief and in cross-examination on behalf of the mother and of A by Mr Sanga, to have articulated some of Coventry’s objections to the foster mother’s candidacy.

In their written reasons the magistrates noted that since birth A had been in a “secure, stable and successful foster placement” and that Mr Sanga had informed them that the foster mother had sought advice and had asked Coventry to assess her as a long-term carer. Indeed at the outset of their reasons, having referred to the applications made by Coventry, to Mr Sanga’s support for them and to an argument, apparently made rather half-heartedly on behalf of the mother, that the hearing be adjourned in order for an assessment of her parenting skills to be undertaken, they wrote:

Inevitably, in my view, the magistrates did not in their reasons indicate, still less find, that the optimum adoptive placement for A was a home other than that of the foster mother. For how could they have given any such indication, still less made any such finding? The foster mother had not been present before them in order to press her candidacy; nor had she even been invited to be present. There was no evidence on the subject other than briefly from Coventry and in short references in Mr Sanga’s report. The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her. In that regard they noted that the foster mother had sought legal advice and were informed that she might seek an adoption order referable to her. In my view it would be fanciful to consider that on 23 November the judge inherited a “decision” by the magistrates that A’s adoption should not be by the foster mother.

There is no official transcript of the judge’s judgment dated 23 November 2007. In the light, however, of Coventry’s intention to place A on 26 November and of the foster mother’s intention forthwith to approach this court, Mr Goodwin and Miss Potter agreed a full note of the judgment; submitted it to the judge by email on about Saturday 24 November; and received his response on Sunday 25 November, in which he congratulated them for having provided a more accurate note of judgment than any other in his judicial experience. It certainly reads with total clarity and fluency. Nevertheless it is important for us to remember that, although later approved by him, the judgment was given ex tempore at 5:15pm; and this court must be careful not to seize upon particular words in the judgment and to invest them with a significance which, in his unconsidered choice of them, the judge did not intend them to carry.

The contention of Mr Goodwin to the judge was either that the application for leave should be granted or that the hearing should be adjourned in order that Mr Sanga should at any rate file a report and preferably also give oral evidence to the judge. The judge rejected the application to adjourn in the following words:

Many advocates less measured than Miss Judd QC would have submitted to us that it almost followed as night the day that, were a Children’s Guardian to be appearing to suggest that in his opinion, albeit at that early stage, it would be preferable for A to be adopted by her foster mother rather than by anyone else, then the foster mother had a reasonable prospect of success in her proposed application for an adoption order; that accordingly it would be in A’s interests for it to be made; and that such would be factors of great, probably determinative, significance in the discretionary exercise referable to the grant of leave. Miss Judd, in my view wisely, has not gone quite so far. It seems to me, however, that, before refusing the foster mother’s application for leave notwithstanding Mr Sanga’s support for it, the judge was required to consider the stance of Mr Sanga much more carefully than he did; to consider the reasons why in Mr Sanga’s opinion it would be in the interests of A to be adopted by the foster mother (or, in that in this court Mr Sanga has somewhat refined his stance, why in his opinion it would be in the interests of A that the foster mother’s candidacy be fully assessed and that she should be given leave to apply for an adoption order); to consider why at that stage Mr Sanga did not accept the validity of the various objections to her candidacy on the part of Coventry; and to give reasons in the time-honoured way for rejecting Mr Sanga’s views. It seems to me moreover that the judge’s consideration of Mr Sanga’s stance could not satisfactorily be undertaken from a study of Mr Pendle’s brief attendance note and should have been collected at least from a report by Mr Sanga such as Mr Goodwin aspired to place before the court at an adjourned hearing and preferably also from a brief attendance of Mr Sanga in the witness box in order that the judge could broadly discern whether his views could prima facie withstand even Miss Potter’s attempted demolition of them in cross-examination. In my view, therefore, the judge fell into error in relation to this first issue, namely whether to adjourn prior to any refusal of the application.

The judge rightly sought to pay regard to the various reasons why Coventry had come to a conclusion adverse to the foster mother’s candidacy. He recorded that Miss Potter had identified three of Coventry’s objections as being of particular importance to them. The first was that the foster mother already had a number of children for whom to care, including her adopted child who was autistic and a natural child who had attachment issues and an eating disorder. I have no doubt that this is an objection which has the potential to be of substantial importance and, were the enquiry into the foster mother’s candidacy to go forward, it would need the closest consideration. The second and third objections identified by Miss Potter, however, seem to me, prima facie, to carry much less force. The second was that, as is obvious, the roles of a foster mother and of an adoptive mother are different and that the foster mother had come into A’s life as the former and not the latter. While it would be absurd to consider that suitability to foster A equated to suitability to adopt her, it would in my view be equally absurd to conclude that suitability to foster her equated to unsuitability to adopt her. Indeed, with Coventry’s consent, the foster mother had already adopted one of her foster children. Third, Miss Potter pressed upon the judge that Coventry hoped to place A “out of Coventry”. The judge described how Miss Potter explained this point as follows:

I believe that, had this highly respected judge had greater time in which to address the application for leave and had drawn down the offer of fuller assistance from Mr Sanga, his appraisal of Miss Potter’s second and third objections could not have remained uncritical.

No doubt the judge was right to consider that relevant to the exercise of his discretion were the delay which the grant of leave would cause to the finalisation of the programme for A’s adoption and the arrest of her introduction to the adopters whom Coventry had found and which by then was well under way. I say so notwithstanding that, were a judge to consider that there was a real prospect that in adoption proceedings a court would find that it would serve the welfare of a child, throughout her life, to be adopted by her foster mother rather than by anyone else, it would in my view rarely be a proper exercise of his discretion for questions of delay to precipitate a refusal to allow the foster mother’s application to be made.

In respect of the delay the judge properly reminded himself that, even were he to grant leave, s.44 of the Act precluded the foster mother’s issue of an application for an adoption order for three months. The judge noted that Coventry would be obliged to undertake an assessment of her candidacy but observed that it was highly unlikely that A’s future would be settled before April 2008 and that it was more likely to be later. Notwithstanding the highly efficient despatch of family business in the county court in Coventry, I have no doubt that it was in effect unrealistic for the judge even to be considering a conclusion as early as April 2008 of an application to be issued only late in February 2008 and that it was not just more likely but inevitable that it would be later. The judge went on, also correctly, to observe that a removal of A from the foster home, if such should be the ultimate decision, would be more difficult for her then than if effected immediately. The judge proceeded as follows:

Powerful points are made by the judge in that part of his judgment. Nevertheless it has curious features. The critical eye at once falls upon the assertion that Coventry were “entitled” to reach their conclusion; and the criticism might be that the judge was there asking himself a question apt more to a judicial review of Coventry’s decision adverse to the foster mother than to an enquiry into whether she should have leave to apply for an adoption order and, as relevant thereto, whether such an application would have a real prospect of success. Had that sentence stood alone, I would have regarded it as unfair to the judge to pick it out of an impromptu judgment and to base substantial criticism upon it. But take also the next sentence, namely that the outcome of assessment was very uncertain. There, submits Mr Cobb, we find in effect a legitimate conclusion by the judge that the foster mother’s application had no real prospect of success. In my view we find no such thing. The judge was concluding only that the foster mother had less than a real prospect of persuading Coventry to support her candidacy. Unfortunately he never asked himself one of the most important questions, namely whether there was a real prospect that she could persuade the court that adoption by her was the optimum placement for A. The judge’s approach was insufficiently independent of Coventry’s approach; and I consider it symptomatic of that deficiency that he should have asked himself whether Coventry had been “entitled” to reach their conclusion.

Perhaps, however, the matter of greatest controversy in this proposed appeal has been the weight placed by the judge upon the outcome in the family proceedings court. It is clear that Miss Potter managed to persuade the judge that the proper place for ventilation of the issue as to whether the optimum adoptive placement of A was with the foster mother had been the hearing in that court on 17 October 2007. Early in his judgment the judge observed that neither the mother nor Mr Sanga had sought to appeal against either of the orders then made. He also observed that the foster mother could have applied to be made a party to those proceedings. Later the judge said:

I have already given my reasons for concluding that it was wrong for the judge to describe the magistrates as having reached any “decision” that A’s adoptive placement should not be with the foster mother. Both when he was a judge of the Family Division and as a judge of this court, Wall LJ has been the inspiration behind the crucially valuable jurisprudence that, prior to making a care order, the court should carefully scrutinise the local authority’s care plan and, if not satisfied that any of its components serves the interests of the child, should decline to make the care order. In giving the judgment of this court he said so most recently in Cheshire CC v. SW [2007] EWCA Civ 232, at [30], being a passage cited by the judge. In my view, however, a care plan serves to explain how a local authority would exercise the powers invested in it by a care order. Most importantly, there is under the present system no facility for the court to survey implementation of the plan; it may only, in anticipation, survey the local authority’s proposals for its implementation at the time when the order is sought. It was clearly necessary for Coventry, in their care plan, to explain that their proposal was for A to be adopted; and to set out their ancillary proposals, for example in relation to the cessation of direct contact between A and the mother following placement. In the event of course, the placement application, when issued, covered the same ground. I am afraid, however, that I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child’s committal into care, the placement order is not the court’s last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s.18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.

In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J. in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483. In that case Hedley J. held on appeal that, while a family proceedings court charged with scrutinising a care plan for adoption needed to be satisfied that the local authority could deliver on their plan and therefore that their best interests panel had indeed resolved that the child be adopted, it had been wrong for it to decline to make the care order until satisfied that the local authority’s linking panel had approved a match of the child with specific adopters. So, on the face of it, the decision is hardly helpful to Mr Cobb. He relies however on the judge’s dicta, at [17], that, exceptionally, it may be appropriate for a court hearing an application for a care order to scrutinise the credentials of proposed adopters; and the example given by the judge is of a child with special needs, adequately cared for by relatively elderly members of the wider family, and of the court’s need in such difficult circumstances to weigh, including by reference to the credentials of the proposed adopters, whether adoption is truly in the child’s interests. I respectfully agree with Hedley J.’s observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.

It follows that in my view the judge’s repeated references to the alleged facility for the mother and for Mr Sanga to have appealed against the orders made on 17 October 2007 were misplaced. The magistrates decided only that A should be placed in permanent care and that she should be placed for adoption. Mr Sanga, for his part, entirely approved both those orders. Had he sought to appeal to the High Court on the basis that, while he approved the orders, he did not accept the validity of the evidence given by Coventry in support of their contention, albeit not properly set out in their care plan, that the foster mother’s home was not the optimum adoptive placement for A, the court would in my view have rejected his proposed appeal as misconceived upon the basis not only that there had been no decision referable thereto but also that the proper forum for resolution of such an issue would be future adoption proceedings. It follows that I cannot associate myself with the judge’s criticisms of Mr Sanga.

I consider therefore that in exercising his discretion the judge paid attention to the views of Mr Sanga at a level below the requisite minimum, failed to ask himself one of the highly relevant questions, namely whether the foster mother’s proposed application had a real prospect of success before the court, and gave substantial weight to a perceived factor, namely the “decision” of the magistrates, which should have carried no weight at all. It is therefore open to this court to exercise the discretion. Although one obvious course open to the judge would have been to adjourn the hearing for Mr Sanga to give proper evidence, another course which in my view was open to him on such evidence as he had was to grant the application. The only course not open to him was the course which he took. Mr Cobb accepts that, if we are satisfied that the judge’s exercise of discretion was flawed, we should exercise it ourselves rather than remit it to him for re-exercise in the light of evidence from Mr Sanga. In my view there is ample material to lead us to conclude that we should not only grant permission to the mother to appeal, allow the appeal and set aside the judge’s refusal, but also grant her leave to apply for an adoption order. But she must not misunderstand the nature of such leave: it may be that, on analysis, the court will uphold some of Coventry’s objections to her candidacy, if maintained, and indeed that it will regard them as determinative. She would be most unwise to allow any sensation to develop in her mind and in that of her children – and, as she becomes more sentient, in A herself – that she is now already in effect a permanent member of the family.

I agree.

I also agree.