S (A Child), Re No. 1

This is the judgment of the court. It is a case to which reporting restrictions apply and any report of the judgment must not identify any of the parties or the child concerned, whether by name, location or otherwise.

The judgment in this appeal, and the judgments in the two cases of Re AJ [2007] EWCA Civ 55 and Re MJ [2007] EWCA Civ 56, all address the same question, which can be simply stated. Should the children concerned be adopted, or should the prospective adopter(s) in each case be appointed special guardians under section 14A of the Children Act 1989 (“the 1989Act”), as inserted by section 115 of the Adoption and Children Act 2002 (“the 2002 Act”)?

Each of the three appeals was heard by a different constitution and on a different date. Only one member of the court (Wall LJ) sat in each constitution. In two of the cases, the question of adoption (and in particular the necessity of dispensing with parental agreement) falls to be considered under the now repealed provisions of the Adoption Act 1976 (the 1976 Act). Nonetheless, and because this is the first time that the question identified in paragraph 2 above has reached this court, all five members of the court involved in the three appeals take the view that they present an opportunity for this court (i) to consider the underlying principles to be applied in making one or other of the two orders; and (ii) to give guidance to courts of first instance on the proper approach in such cases.

Each judgment, accordingly, is a judgment of the court. In addition, each member of each constitution has read, contributed to and expresses agreement with the commentary on the statutory provisions and general considerations, which we set out in this judgment at paragraphs 40 to 77 below, and which should be read as part of each of the other judgments. Given the importance and likely prevalence of the question in adoption, care and private law proceedings, we have also taken the opportunity to show the three judgments to the President, who has authorised us to say that he too agrees with that commentary.

As is to be expected, there is a scholarly and informative chapter (chapter 17) on the legal adoption of children between 1900 and 1973 in Professor Stephen Cretney’s magisterial history: Family Law in the Twentieth Century (2003). The chapter concludes with a discussion of the Houghton Report (Cmnd 5107, 1972) (Houghton) which Professor Cretney, at page 624, describes as:

…..an impressive document, not least because it marked (for the first time in an official inquiry) an awareness that adoption could not sensibly be kept in isolation. In reality, adoption was merely one legal technique for dealing with the future of children whose birth parents were not going to provide their homes throughout their childhoods.

During the course of his discussion of Houghton, Professor Cretney comments (pp 626 / 7): -

Professor Cretney’s footnote refers to paragraphs 106-115 of Houghton, and notes that the Committee considered guardianship might also be appropriate for foster parents in some circumstances – see Houghton paragraphs 120-122.

The Children Act 1975, which followed the publication of Houghton, introduced the concept of custodianship. Professor Cretney addresses this in chapter 20 of Family Law in the Twentieth Century in the course of a review of child care legislation between 1969 and 1989. During the course of his discussion of the Children Act 1975, Professor Cretney comments (at pp 705-6): -

The legislation provided the statutory framework for an alternative legal institution (‘custodianship’) to provide legal security for those providing long-term family care for a child. Not only foster-parents but step-parents and relatives who might otherwise have opted for adoption were amongst those at whom this new procedure was targeted.

A footnote comments that the provisions in the Act relating to custodianship were elaborate and were little used. This was, no doubt, due, additionally, to the fact that they were not implemented until 1988, although the provisions of the Children Act 1975 relating to adoption itself were consolidated in the 1976 Act.

Following the implementation of the 1976 Act, further substantive reform of important aspects of the law of adoption did not occur until the passage of the 2002 Act. There were, however, in the meantime a number of developments in the legislative field, not the least being, of course, the implementation, in October 1991, of the 1989 Act. In October 1992 a consultative document was published by the Department of Health: the Review of Adoption Law, a report to Ministers of an inter-departmental working group. This included a discussion of the difficulties involved in adoption by relatives, and proposed that there should be a power to appoint what was described as a child’s “inter vivos guardian”, who was to have all the rights, duties and powers of a guardian appointed under section 5 of the 1989 Act, apart from the power to agree to the child’s adoption.

In December 2000, the government published a White Paper entitled Adoption: a new approach (Cm 5017) (the White Paper). This followed the fundamental review of adoption policy and practice initiated by the Prime Minister earlier in the same year. The executive summary expressed the government’s belief that “more can and should be done to promote the wider use of adoption”, a sentiment repeated in paragraph 1.13 of the White Paper itself. At the same time, the White Paper recognised that adoption was not always appropriate for children who cannot return to their birth parents. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the White Paper in the following terms: -

‘Special guardianship’

5.8

Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.

5.9

In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.

5.10

The Government will legislate to create this new option, which could be called ‘special guardianship’. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: -

give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;

provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;

preserve the legal link between the child or young person and their birth family;

be accompanied by proper access to a full range of support services including, where appropriate, financial support.

5.11

We will work with the key interest groups and stakeholders to develop the detail of our proposals to be included in the new legislation.

The White Paper then gave what it described as an ‘Illustrative case study’, derived from an unpublished paper by Selwyn and Sturgess (Achieving permanency: proposals for UK policy (2000)): -

J (13) and S (9) have been in the care of the same foster carers for some time. They came into care as the result of Jane disclosing sexual abuse, and are unable to return home. The foster carers and the children would like to remain together but J does not want to be adopted. She wants to keep her birth name, have contact with some members of her birth family but live with her foster carers. ‘Special guardianship’ would provide her and her sister with a permanent home within their foster family.

We have also looked at the relevant parliamentary debates, but do not think that they either go any further than, or say anything different from, the legislative intentions expressed in the White Paper. We do not, accordingly, find that they add anything to, or assist in, our understanding of the legislative provisions, to which we now turn. We have also considered the explanatory notes to the 2002 Act (and in particular paragraphs 18 and 19) which effectively repeat the message of the White Paper.

The provisions relating to special guardianship orders are set out in sections 14A to G of the 1989 Act. Section 14A(1) and (2) of the 1989 Act introduces the new form of order; and provides that a special guardian must be aged eighteen or over, and must not be a parent of the child in question. Section 14A(3) to (5) deals with the identity of those entitled to apply for an order as of right and those who require the court’s “leave” to apply. Section 14A(4) applies section 9(3) of the 1989 Act (which restricts the right of a local authority foster parent to apply for leave).

Section 14A(6) provides for the court to make an order of its own motion: -

The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—

……..

(b)

the court considers that a special guardianship order should be made even though no such application has been made.

Section 14A(6)(b) is of direct application in the first appeal.

Section 14(A)(7) requires a person intending to make an application for a special guardianship order to give written notice of his intention to the appropriate local authority at least three months before the date of the application. Section 14(A)(8) provides that, on receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—

(a)

the suitability of the applicant to be a special guardian;

(b)

such matters (if any) as may be prescribed by the Secretary of State; and

(c)

any other matter which the local authority consider to be relevant.

Section 14A(9) provides that the court may itself ask a local authority to conduct such an investigation and prepare such a report. Section 14A(10) permits the local authority, in the jargon, to “out-source” the work. By section 14A(11) the court is prohibited from making a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).

The provisions relating to notice and leave in section 14A have been considered in the judgment of this court handed down on 20 December 2006 in the case of Birmingham City Council v. LR and others [2006] EWCA Civ 1748 (2006) The Times, December 29, which also considers the Special Guardianship Regulations 2005 (SI 2005 No. 1109) (the Regulations). Two appendices are attached to that judgment, which were prepared by counsel for the local authority in that case and which identify in tabular form those who may apply as of right for a special guardianship order and those who require leave. As this question is not material to any of the three appeals with which this court is concerned, we do not repeat the relevant statutory provisions.

Section 14B(1) requires the court, before making a special guardianship order, to consider whether, if the order were made—

(a)

a contact order should also be made with respect to the child, and

(b)

any section 8 order [i.e. section 8 of the 1989 Act, see below] in force with respect to the child should be varied or discharged.

Section 14B(2) empowers the court, on making a special guardianship order, to give leave for the child to be known by a new surname and to grant leave for the special guardian to take the child out of the United Kingdom either generally or for specified purposes.

Section 14C identifies the effect of a special guardianship order in the following terms, which we set out in full: -

(1)

The effect of a special guardianship order is that while the order remains in force—

(a)

a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b)

subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

(2)

Subsection (1) does not affect—

(a)

the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or

(b)

any rights which a parent of the child has in relation to the child’s adoption or placement for adoption.

(3)

While a special guardianship order is in force with respect to a child, no person may—

(a)

cause the child to be known by a new surname; or

(b)

remove him from the United Kingdom,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(4)

Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.

(5)

If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a)

each parent of the child with parental responsibility; and

(b)

each guardian of the child,

but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

(6)

This section is subject to section 29(7) of the Adoption and Children Act 2002 [where a placement order is in force].

By section 14D(1) the court may vary or discharge an order on the application of : -

(a)

the special guardian (or any of them, if there are more than one);

(b)

any parent or guardian of the child concerned;

(c)

any individual in whose favour a residence order is in force with respect to the child;

(d)

any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;

(e)

the child himself; or

(f)

a local authority designated in a care order with respect to the child.

The court may also vary or discharge the order of its own motion in any family proceedings in which a question arises with respect to the welfare of the child (s 14D(2)).

By section 14D(3), leave is required for an application to vary or discharge made by:-

(a)

the child;

(b)

any parent or guardian of his;

(c)

any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;

(d)

any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.

Where the application is made by the child (under (a)), the court must be satisfied that he has sufficient understanding to make the application. In the other cases, the court may not grant leave unless satisfied that there has been “a significant change in circumstances” since the making of the special guardianship order (s 14D(4)-(5)).

Section 14E contains certain time-tabling provisions for applications relating to special guardianship. Section 14F requires local authorities to provide “special guardianship support services”, namely (a) counselling, advice and information; and (b) such other services as are prescribed. Under section 14F(2) the power to make regulations relating to such prescribed services is to be exercised so as to secure that local authorities provide financial support. Section 14F(3) to (11) sets out in considerable detail how, when, and by and to whom special guardianship support services are to be provided.

Regulations under the Act (The Special Guardianship Regulations 2005 (2005 No. 1109)) deal substantively with the provision of special guardianship support services, and also the content of the local authority’s report under section 14(A)(8). The DfES has also issued Special Guardianship Guidance (under s 7 of the Local Authority Social Services Act 1970), which, in paragraph 5, repeats the message of the White Paper that the aim of special guardianship was “to provide legal permanence for those children for whom adoption is not appropriate”.

As special guardianship orders fall within Part II of the 1989 Act (Orders with respect to children in family proceedings) the provisions of section 1 of the Act apply to them. This sets out the rule that “the child’s welfare shall be the court’s paramount consideration” (s 1(1)); the “general principle” that delay in determining a question relating to the upbringing of a child is “likely to prejudice the welfare of the child” (s 1(2)); and the matters to be taken into account when considering what order (if any) to make (s 1(3)-(5)). Although very familiar, we think it nonetheless important to set them out: -

(3)

In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a)

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)

his physical, emotional and educational needs;

(c)

the likely effect on him of any change in his circumstances;

(d)

his age, sex, background and any characteristics of his which the court considers relevant;

(e)

any harm which he has suffered or is at risk of suffering;

(f)

how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)

the range of powers available to the court under this Act in the proceedings in question.

(4)

The circumstances are that—

(a)

the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b)

the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV.

(5)

Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

Section 8 of the 1989 Act identifies a number of orders which the court is entitled to make in private law family proceedings. In addition to orders for contact and residence, the court is empowered to control the exercise of parental responsibility by means of prohibited steps and specific issue orders. We discuss later the extent to which leave of the court is required before a parent can apply for a section 8 order, once a special guardianship order is in force (paragraphs 62 to 68 below).

Section 9(6) of the 1989 Act provides that subject to section 12(5) the court should not make a section 8 order designed to last beyond the sixteenth birthday of the child concerned, unless it is satisfied that the circumstances of the case are exceptional. Section 12(5) provides:-

The power of a court to make a residence order in favour of any person who is not the parent or guardian of the child concerned includes power to direct, at the request of that person, that the order continue in force until the child reaches the age of eighteen (unless the order is brought to an end earlier); and any power to vary a residence order is exercisable accordingly.

Pursuant to section 91(5A) of the 1989 Act,

The making of a special guardianship order with respect to a child who is the subject of—

(a)

a care order; or

(b)

an order under section 34,

discharges that order.

Although the 1989 Act does not specifically say so, it is plain that a special guardianship order also has the effect of discharging any residence order in relation to the same child. However, the obverse is not the case: thus the fact that a child is the subject of a special guardianship order does not prevent care proceedings being implemented in relation to that child; nor does it prevent a parent (subject to the question of leave) applying for a residence order in relation to the child.

Section 91(10) to (13) concerns the time-limits of section 8 and other orders under the Act: -

(10)

A section 8 order shall, if it would otherwise still be in force, cease to have effect when the child reaches the age of sixteen, unless it is to have effect beyond that age by virtue of section 9(6) or 12(5).

(11)

Where a section 8 order has effect with respect to a child who has reached the age of sixteen, it shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.

(12)

Any care order, other than an interim care order, shall continue in force until the child reaches the age of eighteen, unless it is brought to an end earlier.

(13)

Any order made under any other provision of this Act in relation to a child shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.

It is, accordingly, apparent that a special guardianship order comes to an end when the child who is subject to it attains the age of 18.

Although the status of adoptive parents and adopted children has not changed, critical features of the law of adoption, as contained in the 1976 Act have been changed by the 2002 Act. The latter came into effect on 31 December 2005, and it is to be anticipated that there are few if any outstanding applications for adoption orders under the former. As it happens, however, two of the three appeals before this court (including the appeal which forms the subject of this judgment) relate to applications to adopt made under the 1976 Act.

For present purposes, two aspects of the law of adoption are of particular relevance. They are (1) the criteria for making an adoption order; and (2) the provisions for dispensing with parental agreement to adoption.

The 1976 Act imposed the following test in section 6: -

6.

Duty to promote welfare of child. In reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances, the first consideration being given to the need to promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to him, having regard to his age and understanding. (emphasis added)

Section 1 of the 2002 Act sets out the new approach.

1 Considerations applying to the exercise of powers

(1)

This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2)

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3)

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4)

The court or adoption agency must have regard to the following matters (among others)—

(a)

the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b)

the child’s particular needs,

(c)

the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)

the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)

any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f)

the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)

the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5)

In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

(6)

The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7)

In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

(a)

coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)

coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about ranting leave in any other circumstances.

(8)

For the purposes of this section—

(a)

references to relationships are not confined to legal relationships,

(b)

references to a relative, in relation to a child, include the child’s mother and father.

Thus it is immediately apparent from section 1(2) of the 2002 Act that the court’s concern is for the child in question “throughout his life”, as opposed to the period of his childhood (as under the 1976 Act); or the period until his 16th or 18^th birthday, as in relation to orders under the 1989 Act, including special guardianship.

By section 16 of the 1976 Act, an adoption order could not be made without parental agreement to it, unless the court was able to dispense with that agreement on one or more of a number of specified grounds. For present purposes, the relevant ground is that contained in section 16(2)(b), namely that the parent “is withholding his agreement unreasonably”. Unsurprisingly, there is a substantial body of case law directed to those five words.

Section 47 of the 2002 Act deals with the conditions for making adoption orders under the new regime. The relevant parts of the section are in the following terms: -

(1)

An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc consent).

(2)

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—

(a)

that the parent or guardian consents to the making of the adoption order,

(c)

that the parent’s or guardian’s consent should be dispensed with.

The criteria for dispensing with parental consent are addressed in section 52 of the 2002 Act. By contrast with the 1976 Act, the question of “reasonableness” is not an issue, the sole consideration being the welfare of the child: -

(1)

The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(b)

the welfare of the child requires the consent to be dispensed with.

We first make some general comments on the statutory regime, and its purposes. We then comment on four specific issues which have been discussed in the cases before us:

(i)

Special guardianship orders within pre-existing family relationships; in this context we shall discuss the two first-instance cases to which we have been referred;

(ii)

The need, under a special guardianship order, for leave for a parent to apply for a section 8 order;

(iii)

Dispensing with parental consent to adoption;

(iv)

In what circumstances (if any) should the court impose a special guardianship order on unwilling parties?

The White Paper (paragraph 11 above) contains a helpful summary of the main features of the special guardianship regime, as being to:

It also gives some helpful illustrations of some circumstances in which guardianship may be appropriate:

(i)

Older children who do not wish to be legally separated from their birth families.

(ii)

Children being cared for on a permanent basis by members of their wider birth family.

(iii)

Children in some minority ethnic communities, who have religious and cultural difficulties with adoption as it is set out in law.

(iv)

Unaccompanied asylum-seeking children who need secure, permanent homes, but have strong attachments to their families abroad.

It is important to emphasise that these are only illustrations. There can be no routine solutions. We repeat what this court said in the Birmingham case (cited paragraph 18 above) as to the importance of the issues raised by special guardianship:-

… special guardianship is an issue of very great importance to everyone concerned with it, not least, of course, the child who is its subject. It is plainly not something to be embarked upon lightly or capriciously, not least because the status it gives the special guardian effectively prevents the exercise of parental responsibility on the part of the child's natural parents, and terminates the parental authority given to a local authority under a care order (whether interim or final). In this respect, it is substantially different from a residence order which, whilst it also brings a previously subsisting care order in relation to the same child to an end, does not confer on any person who holds the order the exclusivity in the exercise of parental responsibility which accompanies a special guardianship order. (paragraph 78)

It is important to note also that the statutory provisions draw strong and clear distinctions between the status of children who are adopted, and those who are subject to lesser orders, including special guardianship. As we have already pointed out, the considerations in relation to adoption in the expanded check-list contained in section 1 of the 2002 Act require the court to address the question of the child’s welfare throughout his life. We do not think this point needs any further explanation or emphasis. Its consequences are, however, significant.

Thus, although section 14C(1) of the 1989 Act gives special guardians exclusive parental authority, this entitlement is subject of a number of limitations. Attached to the skeleton argument prepared in the case of Re AJ by Miss Lorna Meyer QC, Mr. David Crowley, (the solicitor advocate for the child) and Mr. Graham Jones (the solicitor advocate for the prospective adopters) was a helpful document entitled Schedule of Main Differences between Special Guardianship Orders and Adoption which set out those differences in tabular form.

For ease of reference we have attached that document to the judgment of the court in that case. It is not necessary, for the purposes of any of the appeals under consideration, for us to consider, for example, whether parental consent would be required were there to be a dispute over immunisations or sterilisation. We reproduce the document because, in our judgment, it demonstrates that, in addition to the fundamental difference in status between adopted children and those subject to special guardianship orders, there are equally fundamental differences between the status and powers of adopters and special guardians. These, we think, need to be borne in mind when the court is applying the welfare checklist under both section 1(3) of the 1989 Act and section 1 of the 2002 Act.

Certain other points arise from the statutory scheme:-

(i)

The carefully constructed statutory regime (notice to the local authority, leave requirements in certain cases, the role of the court, and the report from the local authority - even where the order is made by the court of its own motion) demonstrates the care which is required before making a special guardianship order, and that it is only appropriate if, in the particular circumstances of the particular case, it is best fitted to meet the needs of the child or children concerned.

(ii)

There is nothing in the statutory provisions themselves which limits the making of a special guardianship order or an adoption order to any given set of circumstances. The statute itself is silent on the circumstances in which a special guardianship order is likely to be appropriate, and there is no presumption contained within the statute that a special guardianship order is preferable to an adoption order in any particular category of case. Each case must be decided on its particular facts; and each case will involve the careful application of a judicial discretion to those facts.

(iii)

The key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be: which order will better serve the welfare of this particular child?

The special nature of the jurisdiction also has implications for the approach of the courts:-

(i)

In view of the importance of such cases to the parties and the children concerned, it is incumbent on judges to give full reasons and to explain their decisions with care. Short cuts are to be avoided. It is not of course necessary to go through the welfare check-list line by line, but the parties must be able to follow the judge’s reasoning and to satisfy themselves that he or she has duly considered it and has taken every aspect of it relevant to the particular case properly into account

(ii)

Provided the judge has carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in section 1(3) of the 1989 Act and section 1 of the 2002 Act, it is unlikely that this court will be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case. (We think it no co-incidence that all three of the appeals with which these judgments are concerned fall to be dismissed, although each reaches a different result.)

(iii)

In most cases (as in these three appeals) the issue will be, not the actual placement of the child, but the form of order which should govern the future welfare of the child: in other words, the status of the child within the particular household. It is unlikely that the court need be concerned with the alternative of making “no order” under section 1(5) of the 1989 Act and 1(6) of the 2002 Act.

(iv)

For the same reason, the risk of prejudice caused by delay (to which section 1(2) of the 1989 Act rightly draws attention) may be of less pivotal importance. Indeed, in many cases, it may be appropriate to pause and give time for reflection, particularly in those cases where the order in being made of the court’s own motion. This is a point to which we will return specifically when considering the first appeal.

We would add, however, that, although the “no order” principle as such is unlikely to be relevant, it is a material feature of the special guardianship regime that it is “less intrusive” than adoption. In other words, it involves a less fundamental interference with existing legal relationships. The court will need to bear Article 8 of ECHR in mind, and to be satisfied that its order is a proportionate response to the problem, having regard to the interference with family life which is involved. In choosing between adoption and special guardianship, in most cases Article 8 is unlikely to add anything to the considerations contained in the respective welfare checklists. Under both statutes the welfare of the child is the court’s paramount consideration, and the balancing exercise required by the statutes will be no different to that required by Article 8. However, in some cases, the fact that the welfare objective can be achieved with less disruption of existing family relationships can properly be regarded as helping to tip the balance.

It is clear from the White Paper that special guardianship was introduced at least in part to deal with the potential problems arising from the use of adoption in the case of placements within the wider family. We have referred to the Houghton Report concerns in this respect (see paragraph 6 above).

A particular concern is that an adoption order has, as a matter of law, the effect of making the adopted child the child of the adopters for all purposes. Accordingly, where a child is adopted by a member of his wider family, the familial relationships are inevitably changed. This is frequently referred to as the “skewing” or “distorting” effect of adoption, and is a factor which the court must take into account when considering whether or not to make an adoption order in such a case. This is not least because the checklist under section 1 of the 2002 Act requires it to do so: - see section 1(4)(f) (“the relationship which the child has with relatives.”). However, the weight to be given to this factor will inevitably depend on the facts of the particular case, and it will be only one factor in the overall welfare equation.

As will be seen, the three appeals before this court illustrate the different weight to be placed on this factor in different circumstances, and that in some it may be of only marginal importance. In particular, as the case of Re AJ demonstrates, both children and adults are capable of penetrating legal forms and retaining hold of the reality.

Both of the first instance cases to which we have been referred also concern placements with family members. The first in time was A (local authority) v Y, Z and others [2006] 2 FLR 41. This was a decision of Mr. Robin Tolson QC (sitting as a deputy High Court Judge) on 2 February 2006. In the event, the orders made by the deputy judge were not in dispute, and, quite properly, he made it clear that, although it was possible that these were the first ever special guardianship orders made, his judgment was not intended as a treatise on the nature and effect of such orders.

The facts of the case were complex, involving five children born to the same mother and three different fathers. The question of special guardianship arose only in respect of the three eldest children. Two (A, a boy aged nine, and B, a girl, aged 8) had been living with their maternal aunt and her husband for the previous two years. The third (C, a boy, aged five) had been living with a paternal aunt and her partner. There was no dispute between the parties that a special guardianship was appropriate in each case, and the deputy judge, having considered the available options, agreed. Whilst we have no reason to doubt that the deputy judge was correct to make special guardianship orders in relation to the three eldest children, and the case provides a useful example of the circumstances in which such orders may be appropriate, we do not think the judgment is of any wider significance, nor, in fairness to the judge, did he intend it to be.

The other case, S and B v Newport City Council (unreported) was a decision of Hedley J given in Cardiff on 27 July 2006. The child (“K”) was a boy aged 6. He was living with his maternal grandparents, Mr. and Mrs. S, who sought an adoption order in relation to him, but, in the alternative, were prepared to accept a special guardianship order. It is, we think, an important feature of the case that in the household of Mr. and Mrs. S were also living their two natural children aged 19 and 13 as well as K’s cousin (described as a “little boy”). The cousin was the son of another of Mr and Mrs S’s daughters who was, of course, K’s aunt, and his mother’s sister.

It was common ground that K should be placed permanently with Mr and Mrs. S. K’s parents did not take any part in the proceedings, although the judge recorded that, in so far as their views had been ascertained, they did not specifically consent to K’s adoption, but also did not oppose the making or either an adoption order or a special guardianship order. K’s father was a long term drug abuser with a long record of aggressive and unpredictable behaviour, and “a dreadful history of domestic violence to (K’s mother)”. K’s mother undoubtedly loved K but had persistently put her need for her husband before both her own safety and the welfare of K.

K’s guardian was concerned as to the effects which an adoption order would have in skewing the relationships within the home, and supported the making of a special guardianship order. The local authority was neutral, but made it clear that it would continue financial support for Mr and Mrs. S under a special guardianship allowance and would consider an application for an adoption allowance were an adoption order made.

The judge decided that Mr and Mrs. S should be appointed K’s special guardians. The judge’s principal reason seems to have been that adoption would, as he put it, “significantly skew otherwise perfectly comprehensible and not unusual family relationships and structures”. A special guardianship order was therefore to be preferred, unless it could not meet the welfare needs of the child.

The judge also made both a prohibited steps order preventing K having any direct contact with his parents without an order of the courts, and an order under section 91(14), without limitation of time, in respect of any application for contact by either parent in respect of the child. In addition, he made an order under section 14B(2)(a) giving leave for K to be known for all purposes by his grandparents’ surname.

The case is useful for a helpful historical analysis by the judge of the law relating to adoption, which we will not repeat. The judge also set out in some detail the manner in which K’s relationships with various family members would be skewed by an adoption order. We see no reason to question that analysis, or to doubt that the judge was right to make a special guardianship order on the particular facts as they presented themselves to him. However, we draw attention to the caveat which the judge himself entered in paragraph 22 of his judgment: -

One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In a familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming, or where a child has such disabilities that the need for a carer to have parental status may last long into majority, where adoption may still be right and necessary. No doubt there will be other cases too.

The case is thus a good example of the application of the special guardianship provisions to the facts of a particular case. Whilst it contains a number of general propositions with which we do not disagree, it should not, in our judgment, be viewed as a template. Each case needs to be decided on the application of the statutory provisions to the best interests of the particular child or children concerned.

Under section 10(4) of the 1989 Act, a parent does not require the leave of the court to make an application for a section 8 order. However, section 91(14) enables the court to imposes specific restrictions:-

(14)

On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.

What is the position under a special guardianship order? We have seen that, under section 14D(1) and (3) of the 1989 Act, for an application to vary or discharge a special guardianship order, a parent not only needs the court’s leave, but must show a “significant change of circumstances”. In addition, by section 10(7A) (inserted into the 1989 Act by the 2002 Act): -

If a special guardianship order is in force with respect to a child, an application for a residence order may only be made with respect to him, if apart from this subsection the leave of the court is not required, with such leave.

The effect of this (which did not appear to be in issue at the bar) was that, under a special guardianship order, the only section 8 application for which a parent requires the leave of the court is one for a residence order. This seems to be implicit in section 10(7A). There is a specific requirement for leave for an application for a residence order. It seems to follow that leave is not required to make an application for any other section 8 order.

The absence of a general requirement for leave may seem surprising. Special guardianship orders are designed to produce finality, and there is, accordingly, logic in the proposition that a parent requires the leave of the court to reopen the issue of the order itself or of the child’s residence. But, if so, one might expect similar considerations to apply to other forms of order under section 8. An essential component of the advantages produced by an adoption order for both adopters and children is that they are in most cases then free from the threat of future litigation. If the same protection is not available in respect of special guardianship orders, this may be a substantial derogation from the security provided.

It is true that the court may invoke section 91(14) to place a filter on further applications by parents for other section 8 orders (including contact, and specific issue orders such as schooling). Furthermore, there is, we think, no doubt that the court has jurisdiction to make indefinite orders under section 91(14) of the 1989 Act. However, the test for overcoming the leave restriction has historically been seen as relatively low. The classic statement of principle is that of by Butler-Sloss LJ (as she then was) in the leading case of Re P ([2000] Fam 15 at 38: -

The applicant is not denied access to the court. It is a partial restriction in that it does not allow him the right to an immediate inter partes hearing. It thereby protects the other parties and the child from being drawn into the proposed proceedings unless or until a court has ruled that the application should be allowed to proceed. On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings. (emphasis added)

In a statutory structure designed to achieve permanence and security for children and their carers outside adoption, it may seem an anomaly that the natural parent, whose parental responsibility is effectively and largely neutered, should nonetheless have an automatic right to apply to the court for section 8 relief (other than a change of residence). The very nature of such an application may be to interfere with the exercise of parental responsibility by the special guardian which is meant to be exclusive. The need to invoke section 91(14) to protect special guardians and children from the anxiety imposed by the prospect of future litigation is a possible weakness in the scheme.

In any event, anomalous or not, it is plain to us that the statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all section 8 orders apart from residence. In this respect it must be accepted that special guardianship does not always provide the same permanency of protection as adoption. In our judgment, this is a factor, which in a finely balanced case, could well tip the scales in favour of adoption.

We have already noted the change made by the 2002 Act to the statutory criteria for dispensing with parental consent to adoption. Plainly, the different test set out in section 52 of the 2002 Act constitutes a major change. As we have pointed out, two of the three appeals before this court were concerned with proceedings under the 1976 Act. In Re S, as will be apparent from what follows, the judge did not think the test in section 6 of the 2002 Act satisfied. As a consequence, she did not go on to consider the question of parental agreement, In Re AJ, the judge found section 6 of the 1976 Act satisfied, and went on to dispense with parental agreement on the ground that it was being unreasonably withheld.

As this court makes clear in its decision in Re AJ, the judge applied the law correctly, and this court has upheld his decision. However, we have already pointed out that there are unlikely to be many, if any, 1976 Act cases left in the system. In these circumstances, we think it both unnecessary and undesirable to add to the considerable jurisprudence on the point. It is, we think, sufficient for this court to say that in this case, the judge applied the law correctly, and no interference by this court in the exercise of judicial discretion is permissible.

What we think more germane is the proper attitude of the court to the provisions as to parental consent contained in section 52 of the 2002 Act. At first blush it would appear likely to be the case that once the court has reached the conclusion that adoption is in the best interests of the child, it will follow that his or her welfare will require the court to dispense with parental consent to adoption. That, certainly, appears to have been the position in the third of the cases before this court, Re MJ.

We do not, however, think it appropriate to express a final decision on the point until it arises in a case in which it is pivotal to outcome. In Re MJ, the emphasis on counsel’s argument was on the distinction between adoption and special guardianship orders. The proposition that dispensation with consent did not follow once the welfare test for adoption had been satisfied did not form part of counsel’s argument. Whilst, therefore, our provisional view is as expressed in paragraph 71 above, we think that final consideration of the point should await a case in which it arises as a critical issue.

There is no doubt, as section 14A(6)(b) of the 1989 Act makes clear, that the court has power to make a special guardianship order of its own motion, where the welfare of the child is in issue in any family proceedings, although as already noted (under s 14A(11)) it must first receive a report dealing with the matters referred to in section 14A(8). If no application for a special guardianship order has been made by any of the parties to family proceedings, a common reason will be that no party wants such an order. The statute therefore implicitly envisages an order being made against the wishes of the parties, and in a case in which the party seeking a different order (for example adoption) does not want to be appointed the child’s special guardian. Indeed, this is the case in all three of the current appeals.

In this connection, we were referred to the decision of this court in Re M (adoption or residence order) [1998] 1 FLR 570 (Re M). In Re M it was common ground that the court had the power to impose a residence order on unwilling parties. It is to be noted that the statutory language in section 10(1)(b) of the 1989 Act is identical to that in section 14A(6)(b). This reinforces our view that the court has jurisdiction to impose a special guardianship order on an unwilling party. The real question, however, is whether or not it should do so.

In that case (which was, of course, decided under the 1976 Act) the judge had made an adoption order in relation to a girl of 12 and dispensed with her mother’s agreement to the order. This court, by a majority (Ward and Judge LJJ, Simon Brown LJ dissenting) set aside the adoption order and replaced it with a residence order in the prospective adopters’ favour, combined with an order under section 91(14) of the 1989 Act designed to prevent the child’s mother making an application for a residence order in her favour without the permission of the court.

The facts in Re M were particularly stark, because the proposed adopters’ case was that, if they did not obtain an adoption order in relation to the child, they would cease to care for her and return her to her mother’s care, something which was plainly not in her best interests. The judge at first instance had treated the case as allowing him only two options: adoption or return to the mother. Inadequate consideration was given at first instance to what the majority thought to be in the child’s best interests, assuming she could not be adopted, namely continuing to reside with the prospective adopters under a residence order with a section 91(14) prohibition on the mother making any further applications under section 8 of the 1989 Act (particularly for residence) without the court’s permission. The majority felt unable to dispense with the mother’s agreement to adoption on the ground that it was being unreasonably withheld, although Ward LJ was of the view that the test in section 6 of the 1976 Act was satisfied. Simon Brown LJ, on the other hand, was of the opinion that although an adoption order was “clearly unideal” the reasonable parent in the mother’s position would recognise both the near certainty of the prospective adopters relinquishing the care of the child if an adoption order was not made, and that the consequences of such a course of action would be disastrous to the child. Such a parent, accordingly, would have given her consent to the adoption.

Whilst Re M highlights the intense difficulties of factual situations thrown up by the provisions of sections 6 and 16 of the 1976 Act, we do not find it of any particular assistance in addressing the two questions we have posed. The jurisdictional position is very clear: the court has the power to impose a special guardianship order on an unwilling party to the proceedings. Whether or not it should do so will depend upon the facts of the individual case, including the nature of the refuser’s case and its inter-relationship with the welfare of the particular child. What seems to us clear is that if the court comes to the view on all the facts and applying the welfare checklist under the 1989 Act (including the potential consequences to the child of the refuser implementing the threat to refuse to be appointed a special guardian) that a special guardianship order will be serve the welfare interests of the child in question, that is the order which the court should make.

Against this extended background, we turn to the instant appeal. With permission granted by the judge on 20 July 2006, Ms A (the appellant) appeals against an order made in the Manchester District Registry on 13 July 2006 by Her Honour Judge Kushner QC sitting as a judge of the High Court. The appellant had applied under the 1976 Act to adopt S, a female child born on 26 January 2000, and thus approaching six and a half years old at the date of the judge’s order. The order made by the judge appointed the appellant S’s special guardian, and was made of the judge’s own motion under section 14A(6)(b) of the 1989 Act.

The other parties to the proceedings were S’s parents (whom we will identify only as “the mother” and “the father” respectively), the local authority (which we will not otherwise identify) and S herself by her CAFCASS guardian.

The judge delivered her decision in two parts. Firstly, she decided that S should live with the appellant for the remainder of her minority. Although initially disputed, that decision has not been challenged, and it is now common ground between all the parties to the proceedings that S should continue to live with the appellant for the indefinite future. The main question for the judge, and on which she delivered the reserved judgment now under appeal, was whether S should be adopted by the appellant, or whether S should live with the appellant under a special guardianship order. As is already plain, the judge ordered the latter.

At the conclusion of the argument, we announced that the appeal would be dismissed, but reserved our reasons, which we now give.

We take these from the judge’s judgment and from a helpful chronology provided by the appellant’s counsel. S’s mother was born on 27^th October 1976. Her father was some 11 years older and 41 when the judge gave judgment. The couple never married. There was regular involvement by social services from very shortly after S’s birth.

The judge dealt succinctly with the background to the care proceedings relating to S issued in July 2003 in paragraphs 3 to 5 of her judgment, in which she said: -

3.

In March 2003, S had a torn frenulum, which I regard as a key indicator of non-accidental injury,

(We interpolate: it is not clear in what circumstances or by whom this injury was inflicted)

Thereafter, there were ongoing concerns about domestic violence, with separations and reconciliations between the parents. Both parents became involved in the use of drugs: first the father, and later the mother. This led to the now familiar situation of an ensuing chaotic life-style in squalid home circumstances resulting in inappropriate care of the child.

4.

The mother was given ample opportunity for assistance, but there was no sustained improvement. Accordingly, S was placed with a foster mother (the appellant) on a voluntary basis from January to April 2003, when she was aged just 3 years. When matters did not improve thereafter, care proceedings were commenced by the local authority….. Luckily (the appellant) was able to resume care of S, and she was placed with her again on 22 August 2003, when she was three years eight months old.

Care proceedings continued in the usual way. The assessments concluded that neither parent was suitable to look after S. However, a cousin of the father and her partner were deemed appropriate, and S was transferred to their care in August 2004. S was then four years and eight months old and had been with (the appellant) for 12 months. A care order was made about one month later on 6 September 2004, with the care plan that S was to remain with (the father’s cousin) and her family, with contact to both parents. Parental responsibility was granted to the father on the same day.

S’s placement with her father’s cousin and her partner was not a success and broke down In December 2004. S then moved back to live with the appellant, where she had remained ever since.

A little more flesh needs to be placed on these bones. It is an unusual, but fortunate feature of the case that the appellant was available as a local authority foster parent on each occasion when it proved impossible for S to live either with her mother or with members of her wider family. A significant event, however, was that on 31 October 2003, whilst S was living with the appellant, the latter’s partner was murdered outside their home. It appears that he was mistaken for the intended victim, who lived next door. This incident led, to S being removed from the appellant’s care for a period of about three weeks. More significantly, perhaps, is the fact that in January and February 2004 and before the father’s cousin asked to be assessed as a carer for S, the local authority’s care plan had been for S to be adopted. However, the appellant felt unable to put herself forward to adopt S because of her recent bereavement.

In February 2005, the local authority’s care plan reverted to adoption outside the family. The appellant put herself forward and was approved by the permanency panel on 19 May 2005. The judge summarised what happened in paragraphs 10 and 11 of her judgment.

10.

The day before the panel, (the appellant) issued her application within these proceedings to be made a party. This in turn unleashed a series of applications by others. First of all, on 15 June 2005, the father applied to discharge the care order and to pursue an application for contact. The father’s cousin, on 6 July 2005 herself applied for leave to be made a party and to pursue a residence application. In response to both those applications, the mother in turn on 8 July, applied to discharge the care order and pursue contact. In turn, (the appellant), in view of her desire to adopt S, filed her adoption application in respect of the child on 24 October 2005.

11.

By the beginning of this hearing, the parties’ positions had become less complicated. (The father’s cousin) had withdrawn her claim to care for S and from the proceedings. The father had serious criticisms of the actions of the local authority, especially refusal of contact to him. He has made formal complaints and some of those have been upheld. However, contact recommenced shortly prior to the hearing and has been successful. The continuation of contact has been assured whether S is with her mother or with (the appellant) under either an adoption order or other order and this issue was not therefore contested. The father was basically undecided whether to support the mother or (the appellant). However, in the end, on balance, he indicated at the hearing that he supported the return of S to the care of her mother.

The judge was thus left with two decisions. Firstly, with whom should S live? Secondly, what order should govern the outcome? The judge dealt with the matter by announcing her decision on the first issue, but reserving her reasons. Having decided and announced that S should live with the appellant, the judge invited written submissions on the second question, and reserved judgment.

The judge’s reasons for deciding that S should live permanently with the appellant are no longer controversial, but they remain important, not least because, inevitably, they also informed her decision on the second question. Two unusual features in particular rightly impressed the judge. The first was the remarkable relationship between the appellant and S’s mother. The judge put the matter graphically in paragraph 23 of her judgment when she said:

In my thirty years of doing child care work in the courts, I do not think I have ever seen a birth mother and a potential adopter with such a high regard each for the other. Despite being on opposite sides of the argument, (the mother and the appellant) have, evidence permitting, spent the breaks together and sat together in court, exchanging comments one to the other as though they were on the same side. In most respects they have been. They each want to care for S, but they both equally want the best for her. Whatever the outcome of this case, each has expressed gratitude to the other and genuinely wants the other to remain a significant figure in the life of S. I do not doubt that their relationship will continue along this path long after this case is at an end. From this, one can deduce that this mother is very special indeed.

S’s guardian, in his oral evidence, made a similar comment when discussing his lack of any real concern over the frequency of S’s contact with her mother should she be living with the appellant. On pages 8 and 9 of the transcript of his evidence, the following exchange occurs: -

Guardian:

I actually think I need to comment here on the quality of the relationship between (the appellant) and (the mother).

Judge Kushner:

It is extraordinary, is it not?

Guardian:

Yes, to be honest, in all my experience, I have never come across this before Normally, with foster carers, you will have a great deal of difficulty getting them to accept parents on any level because it is almost like, never the twain shall meet, almost, but with these two it is extraordinary.

Solicitor for the Child:

In fact we have observed them during the course of the week, have we not, sitting together, having lunch together?

Guardian:

They sit together, the laugh together, they walk out of here having given evidence and go and have lunch together.

Judge Kushner:

They also comment to each other about us. You do not see it but I do.

The second feature of the case which impressed the judge, and which stands out from the case is the extraordinary success which the mother has achieved in ridding herself of her addiction to hard drugs and in reforming her lifestyle. The judge described it in the following terms in paragraph 13 of her judgment: -

It would be fair to say that (the mother) has made a remarkable and revolutionary change in her life and lifestyle. She has been drug free since the summer of 2004. About three years ago, she met a man (name omitted) a gas fitter, who came to do some work at her address. After about one year of his acquaintance, their relationship developed into something deeper and they have been partners for some two years now, living together since the end of 2004 or beginning of 2005.

The judge was plainly impressed by the mother’s partner, whom she described as “a pleasant, solid type of man”, whom she had no doubt would, “try to be a good father figure to any child and would go out of his way to be an appropriate father figure to S”. The judge added: -

His contact to S has been very limited up to now, something that will be rectified sooner rather than later. However, I get the impression that he has the ability to deal with S sensitively and, subject to the response of S herself, he has the ability to accept her as his own, if given the opportunity.

So why was it not in S’s interests for her mother to resume her care? The principal answer lay in the assessment of the mother by Dr. Clive Reading, a well known and highly respected psychologist, who had assessed the mother during the initial care proceedings, and who had both reported to the judge and given oral evidence in the current proceedings. The judge cites extensively from Dr. Reading’s report, and the judge was plainly impressed by his evidence.

Whilst praising the mother for the remarkable changes she had achieved in her life, Dr. Reading reported that the mother was “highly defensive in responding to psychological questionnaires”. He regarded this as “likely to be part of her rather emotionally repressed state, being a legacy of her drug use”, although he did not think that the mother was seeking to mislead, an assessment with which the judge agreed.

Dr Reading was, moreover, of the view that the mother’s defensiveness was consistent with a concealment of her inner feelings. Whilst he reported her as “currently very happy with her new lifestyle”. Dr. Reading was concerned that the mother remained “emotionally fragile, understandably so”. He added that “having S with her, if that were the court’s decision, would lead her to feelings of guilt, remorse and regret becoming more prominent.”

Whilst expressing the view in his oral evidence that the mother had the capacity to appreciate the impact of her previous conduct on S’s development, Dr Reading reached the main thrust of his opinion in the following paragraph from his report, which the judge cites, and which we will repeat: -

The main psychological issues for (the mother) have been her drug use, her previous violent intimate relationship, her lifestyle and her emotional stabilities. Other issues are her bond with S and her parenting skills in terms of her ability to understand and meet S’s needs. These latter issues are critical, and will, I understand, be addressed by the independent social worker. If that assessment is broadly positive, then my view would be that (the mother) would be capable of providing adequate parenting unless (the judge’s emphasis) S requires parenting that is above average in quality. It is unlikely that (the mother) would be as capable as the current foster mother and, of course, S would not have the full involvement with the foster siblings that she currently has. Nevertheless, (the mother) is reasonably well placed to provide parenting that would not expose S to risk to significant harm.

The guardian was also of the opinion that S required what he described in his report as “a skilled carer capable of giving more than good enough parenting”. He was unsure whether the mother had the necessary skills, whilst being confident that the appellant possessed them.

In his oral evidence, the guardian made the same point. S was a child who “tests the boundaries, very very much so, to the extent that there are people in (the appellant’s) family that will not look after her”. He added that S responded very much to the kind of parenting she received from the appellant: -

……what I am saying is that quite clearly if S is not parented properly, then you can see that her behaviour deteriorates. S will push the boundaries, will continue to push the boundaries and if you are of a person where she feels she can manipulate you, she will. I do not want to demonise this child but the reality is that she is challenging and if we expect this child to do well, you have also got to bear in mind what S’s wishes and feelings are and the fact that you take her away from that, that could, in effect, destabilise this child more and she could kick against it. If you add all of that together then yes, she definitely does need …..”

Apart from the evidence of Dr. Reading and the guardian, there was abundant evidence in the case supporting the judge’s conclusion that bright as S was, and despite the fact she was doing well at school and had shown her ability to forge strong family links with the appellant and her “sibling figures”, she was not a normal child. There was equally, in our judgment, abundant material on which the judge could properly reach the conclusion she expressed in paragraph 34 of the judgment: -

How would (the mother) manage then, given her feelings of guilt as to how she treated her child in the past and in the light of her remaining fragility? I think (the mother) would have major problems and both she and S would suffer as a result. Is S a child who requires only average parenting? I do not think so. She has undergone many changes in her life, a lot of which were negative, except for those which resulted in her spending her time and being cared for by (the appellant) in her family. I feel that there is a legacy that S carries with her that requires very careful handling, the type that (the appellant) can offer, but that the mother would be hard pressed to achieve. If under other circumstances (the appellant) could not look after S then I would support (the mother) resuming care of her daughter in preference to moving her to live with strangers. However, I cannot and dare not underestimate the impact of yet another move for S from the home which has been her refuge time and again over the years and it was for those reasons that I indicated that S should remain in the care of the appellant.

It was against this background that the judge approached the question which is at the heart of his appeal. The first point she made was that the appellant’s adoption application was made under what she described as “the old rules”. This meant, she said that the appellant had the burden of establishing both that adoption would safeguard and promote S’s welfare throughout her childhood (the test identified in section 6 of the 1975 Act) and that S’s parents were withholding their agreement unreasonably (section 16(2)(b) of the 1976 Act).

Secondly, the judge considered the protagonists’ human rights, and in particular S’s right to brought up by her natural parents, or at least one of them, and her parents’ right to participate in her upbringing. She directed herself, however, that both sets of rights, in appropriate cases, had to give way to welfare considerations.

Thirdly, the judge pointed out that whatever order she made, the appellant intended S to have contact with both parents. Contact with her father was at an early stage: contact with her mother was well established. The appellant not only envisaged “frequent and regular contact” but also that over time it might increase in length and develop into staying contact. The judge did not regard this as fanciful, given the cordial relationship between the appellant and S’s mother and noted that in her oral evidence the appellant had even gone as far as to say that she expected S would want to see her mother more as she grew older “and would not even deny the possibility of S wanting to live with her mother eventually”.

Fourthly, the judge examined the appellant’s motives for seeking an adoption order. She described the appellant as “impressively frank” in her evidence. The judge found that: -

Her desire for adoption was to secure her position and that of S. However, the main ground put forward by her was to ensure that there were no further proceedings and incursions into her private life and into the life of her family, including S, by applications by the natural family. She wanted her decisions in relation to S’s care to remain unchallenged. The reason put forward by her was to ensure that there were no further proceedings and incursions into her private life and into the life of her family, including S, by applications by the natural family. She wanted her decisions in relation to S’s care to remain unchallenged.

The judge said that the appellant had found the proceedings very stressful. But more than that, the appellant did not want any further litigation on any matter if it could possibly be avoided. The judge respected that view, and regarded it as reasonable. However, she pointed out that under a special guardianship order, the appellant would have the day to day management of decisions relating to S’s life unless she, the judge, were to give S’s parents leave to challenge them. She made it clear that leave would not be forthcoming unless something major had occurred in the lives of the appellant or S such as to indicate that “the whole basis of this placement was undermined or had changed and S’s welfare cried out for a review”. She also pointed to the fact that both of S’s parents had agreed to the judge making an order under section 91(14) of the 1989 Act prohibiting any further application under the Act (for example for contact) with the leave of the court. The judge described this as giving the appellant “a further layer of protection from having her autonomy over S undermined – particularly by S’ father.

The judge then expressed the view that a special guardianship order would provide a legal expression for S’s loyalty to both the appellant and her mother. S, she found, wished to preserve her relationship with both by living with the appellant and seeing her mother on a regular basis. The issue of S’s surname was not, the judge found, and as the appellant had accepted, particularly important. The appellant had not thought a change in S’s surname in the absence of an adoption order was necessary at this stage, although the judge expressed a willingness to grant such an order if asked.

The judge then addressed the argument that an adoption order would put S on all fours with the appellant’s two natural daughters and a third child who had been placed with her as a small baby at the end of August 2004 and whom she had adopted in 2006. The judge addressed this argument in the following way:

This proposition is not an unusual one put forward where there are children from different origins within the same household. However, in this case, S is not the same as the other children. Unlike (the child adopted in 2005) and even unlike (the appellant’s two natural children) S is to continue seeing her father, all being well, and certainly her mother on a regular basis. She has links with her birth family that the other children in the (appellant’s) household do not have. Moreover, although one cannot foretell the future, I can easily foresee the situation when S is older when she may demand to know why she had been adopted when she is still part of her birth family and participating as such on a practical level. That is not to say that she will necessarily demand to go back to live with her mother, but she may ask why her legal link with her birth family has been cut off. Of course, the passage of time may indeed result in S wanting to become the legal child of (the appellant). At that stage, there is nothing to prevent another adoption application being made. When S is more mature and able to understand the significance of such a step, the case will then be much stronger in favour of making an adoption order taking into account the wishes and feeling of a child who is much more mature. At this point in her life, however, I do not think I can say that an adoption order is the only way or even the best was of securing her future in the (appellant’s) family, nor that it will reflect S’s wishes in the medium or long term.

The judge then rejected the proposition that special guardianship orders were limited to cases where children were placed permanently with family members or long term foster parents. She regarded special guardianship “with fresh eyes as a new option available to the court in appropriate cases”. Although the appellant was not of S’s natural birth family, the relationship between the appellant and S’s mother was not dissimilar in many ways from the relationship between members of a child’s natural and extended family. In addition, extensive contact would maintain and promote the relationship between mother and child.

The judge concluded her judgment with the following two paragraphs:

44.

Taking all these considerations into account, (the appellant). Sadly for her, has not satisfied me on the balance of probabilities that adoption is the best or the only way of securing S’s welfare throughout her childhood. Moreover, given the matters to which I have referred, I could not say on the balance of probabilities that the mother is in fact being unreasonable in withholding her agreement to an adoption order being made.

45.

So far as the father’s agreement is concerned, there is not really any need to consider his position once the mother’s consent has not been dispensed with and the adoption order has not succeeded. However, I can say that his opposition to an adoption order if it stood on its own without any consideration of the position of the mother is much less reasonable and tenable. Under the circumstances, therefore, I am not going to make an adoption order. Instead I am going to appoint (the appellant) as a special guardian for S. I feel that the current level of contact to the mother at once a month is the appropriate level. Contact to the father should develop according to the wishes and needs of S with the assistance of the local authority if (the appellant) desires it. There will be an order under section 91(14) that there be no applications for any order under the Children Act 1989 without leave of the court and I reserve this case to myself for any further application so I will be dealing with any questions in the future.

The order made by the judge contains recitals which reflect the judge’s intentions in relation to contact and that there will be “some social services assistance with preparatory work to be undertaken to introduce (the father) to S. In addition to appointing the appellant S’s special guardian under section 14A(6)(b) of the 1989 Act, the order directs the local authority “to file and serve its plans for financial and other support for (the appellant) under (the Regulations) by 4.00pm on 1 August 2006. The judge listed the case for 10 August 2006; (a) to consider the appropriateness of the package of support to be provided, including any outstanding issues of contact; (b) whether S’s surname should be changed to that of the appellant; and (c) for S to met the judge. The judge also made an order under section 91(14) of the 1989 Act unlimited in time, and reserved any further applications to herself. As the judge in the course of the hearing had expressed the intention not to retire until after S had attained her majority it is reasonably clear that, all other things being equal, any further necessary applications will, indeed, be heard by her.

For the appellant, Miss Catherine Shelley summarised her main arguments in respect of the appeal as follows. She submitted that the judge: -

(1)

had failed to consider all the evidence as regards S’s welfare and most notably ignored the evidence of the Children’s Guardian that from S’s perspective adoption was “the best fit”;

(2)

had failed to address the criteria for consideration of the child’s welfare as set out in the welfare checklist and that she therefore

(3)

had come to the wrong view as to special guardianship being the most appropriate order to meet S’s welfare;

(4)

having failed to consider all the relevant evidence in respect of S’s welfare and having come to the view that special guardianship was the appropriate order, she failed to consider appropriately the issue of whether parental consent to adoption was unreasonably withheld.

Miss Shelley also submitted that the appeal raised a number of points of principle in relation to adoption and special guardianship which require clarification. She identified these as the following. For ease of reference we will continue with the same numbering: -

(5)

The proper approach to resolving the apparent conflict between the tests to be applied as between the paramountcy of the welfare principle relevant to special guardianship or other orders under the Children Act 1989 and the issue of withholding of parental consent for adoption under the Adoption Act 1976.

(6)

The appropriate scope of special guardianship orders and their relationship to adoption with post adoption contact, considering in particular situations in which the child has links with two different families and the implications for the exercise of parental responsibility.

(7)

Consideration of the test of unreasonableness in withholding consent when the alternatives are Special Guardianship or adoption with post adoption contact.

(8)

The appropriate balancing of the interests of the child’s welfare, the biological parents’ ties with the child and the psychological or social parent’s interest in having an adoption order as opposed to an alternative order.

(9)

Whether it is right in principle to impose a special guardianship order on a carer whose application is for adoption.

(10)

The level of security or otherwise afforded by special guardianship orders requiring in particular, consideration of the test for leave ie that there has been “a significant change of circumstances since the making of the special guardianship order.

These submissions were, of course, fully developed in both Ms Shelley’s written and oral arguments, and we mean no disrespect to her when we say that we do not find it necessary to address each of them individually. Indeed, so far points (5) to (10) in paragraph 110 above are concerned, we take the view that they have already been effectively addressed in paragraphs 41 to 77 of this judgment.

We are unable to accept the first four submissions set out in paragraph 109 above for a number of reasons. Firstly, so far as the evidence of the guardian is concerned, we think that, with due respect to her, Ms Shelley overstates the case when she submits both that the judge ignored the guardian’s evidence, and that the guardian was, in effect, making a recommendation that the judge should make an adoption order.

It is, of course, as we have already stated, trite law, and needs no citation of authority to establish it, that if a child’s guardian or a CAFCASS reporting officer makes a clear recommendation, it is incumbent on a judge who rejects it to provide a satisfactory explanation for rejecting it. In the instant case, however, we do not think that the guardian was making a clear recommendation in favour of adoption.

In his carefully balanced and well reasoned written report, the guardian points to both the advantages and the disadvantages of adoption, and advises, in particular, that the court might wish to hear oral evidence on the question of whether an adoption order would cause a rift between the appellant and the mother. In that report, he “lean(s)” towards an adoption order based on S’s needs for stability and permanency, but expresses reservations if such an order were to undermine the relationship between the appellant and the mother. Either order, he advises, would secure S’s future with the appellant.

In his oral evidence, of which we have a transcript, his position does not, we think, alter. It remains a very finely balanced decision. In a passage from his evidence, during cross-examination by Ms Shelley, the following exchange occurs: -

Counsel

You have talked about your view in terms of adoption being the right order for S on the basis that that fits her sense of expectation and identity better, is that correct?

The guardian

Yes. It is the emotional side, it is the identifying side. I do not think you can underestimate that. I think that is a very important feature when it comes to a child’s stability.

Counsel

And so from the point of view of the paramount welfare of the child, adoption would be better than special guardianship?

The guardian

Yes.

If the exchange had ended there, we think there would be more force in Ms Shelley’s point. The following question and answer are, however, in our view, significant when taking an overall view of the guardian’s position.

Counsel

And your perspective on special guardianship would be that would be to meet the parent’s expectations rather than S’s?

Guardian

Yes, although I would have to say it does have a degree of fitness about it so it would certainly meet some of S’s needs. I lean one way but I cannot ignore the other way.

In equally careful and well thought through written submissions to the judge on behalf of the guardian, Mr. Cryne properly described the necessary exercise of judicial discretion as “finely balanced” and described special guardianship as “a direct alternative in this case to an adoption order”. Those submissions conclude: -

….. if special guardianship were not available then it would be (the guardian’s) clear recommendation for adoption, he would not be comfortable with a residence order and an order for contact given that there is (a) long term carer who is willing to adopt this child. Special guardianship to some extent has muddied the waters, it is new untested legislation which is designed to give children and long term carers the same sense of security and permanence that hitherto in the absence of an adoption order they may not have had.

In this court, Mr. Cryne on the guardian’s behalf, did not support the appeal. He acknowledged that he could not assert either that the judge’s exercise of discretion exceeded the ambit of reasonable disagreement, or that it was plainly wrong within the well known principles set out by the House of Lords in G v G [1985] 1 WLR 647. He repeated the guardian’s position, namely that he leaned in favour of adoption so as to address S’s emotional needs, whilst acknowledging that the same result could also be achieved by a special guardianship order. It was a very finely balanced argument, and given the dynamics of the case, the order was of less concern. A special guardianship order could meet all the issues raised.

In these circumstances, we do not think it a fair criticism of the judge that she ignored the guardian’s evidence. The judge plainly agreed with the guardian on the question of placement, and in such a finely balanced case, where the guardian was not making a clear recommendation, it is, in our judgment, sufficient if the judge explains her reasons for making the order under appeal, in terms which make her reasoning clear. This task, in our view, the judge accomplished.

The judge did disagree with the recommendation of the independent social worker called on the mother’s behalf that S could safely be rehabilitated to the mother’s care. In this instant, the judge fully explained her reasons for her inability to accept the recommendation. Had the guardian’s position been as clear as that of the independent social worker, the judge would have been obliged to address it. It was not. What exercised the guardian was the question of S’s emotional security. That the judge addressed fully and carefully.

As to Ms Shelley’s second point, it is, of course, the case that the judge did not in terms address the welfare checklist contained in section 1(3) of the Act of 1989. It would have been better had she done so, and the fact that this appeal will be dismissed should not act as an encouragement to judges, however, experienced, not to have regard to the terms of the two relevant check-lists. In our judgment, however, it is clear that Judge Kushner grasped and addressed the important issues in the case, and in all the circumstances, we do not think that her failure to do so by reference to the statutory checklists vitiates her judgment.

As the adoption proceedings were taken under the 1976 Act, the judge was not obliged to address the checklist contained in section 1 of the 2002 Act. Although section 1(4)(b) of the 1989 Act, as amended, imports the welfare check-list into the court’s consideration when considering whether to make a special guardianship order, it is equally trite law (and requires no authority) that an experienced judge such as Judge Kushner is not required to set out the terms of section 1(3) of the 1989 Act and address each of its components in turn. It is, once again, sufficient in our view if the judgment, taken as a whole, makes it clear that the judge has addressed her mind to the relevant aspects of the checklist. From the extracts we have cited from the judgment, it is, once again, clear that this is a task the judge performed. We refer back, however, to what we said in paragraph 48(i) and (ii) namely that as a matter of discipline, and as an aid to ensuring that the court has fully addressed all the relevant issues, a reference to the checklist, and an analysis of the issues by reference to it is desirable.

Finally, we address Ms Shelley’s fourth point, namely the judge’s failure to address the question of the unreasonable withholding of the mother’s agreement. In our view this point is unsustainable for the simple reason that the test under section 6 of the 1976 Act is two-fold, and the question of dispensation with agreement only arises if the court is satisfied that adoption will indeed safeguard and promote the child’s welfare throughout her childhood. In the instant case, the judge found that the appellant fell at this hurdle. She was not so satisfied. In such circumstances, assuming her first finding is sustainable, she did not need to consider the question of dispensation with parental consent.

As is, we think, already clear, we take the view that the judge was entitled to take that approach, and to conclude that, on balance, S’s welfare was better served by a special guardianship order. The judge was thus entitled not to address the question of parental consent.

We conclude our judgment on the merits of this appeal by echoing the admiration expressed by the judge in relation to both the appellant and the mother. We hope very much that the spirit of mutual respect and affection between the two will continue, and that there will be no future disagreements between them about S’s upbringing. We also wholly endorse the judge’s conclusion that what S needs is long term emotional and physical security, and that this is best provided by the appellant. We hope, therefore, that, apart from any tidying up to be undertaken by the judge at the postponed appointment for further directions, this is the last the court will hear of this case. If things do go wrong, we are reassured by the fact that Judge Kushner, all other things being equal, will be around to deal with them. This is a case where the availability of judicial continuity is of particular importance.

Although the trigger for the report identified in section 14A(8) of the 1989 Act is notice to the local authority given by a prospective special guardian, in this case the order was made under section 14A(6)(b). In such circumstances, it seems to us that section 14A(11) is unequivocal, and that the court does not have the power to make a special guardianship order “unless it has received a report dealing with the matters referred to in sub-section (8)”. Accordingly, in a case such as the present, in which the judge plainly considered that “a special guardianship order should be made even though no such application” ha(d) been made, it was incumbent on the judge to exercise her power under section 14A(9) to ask the local authority to conduct its investigation and prepare a report. She plainly did not do so: there is no report under section 14A(8) and the special guardianship order would thus appear to have been made without jurisdiction.

This point was not taken before us, but we do not think it should be fatal to the outcome of the appeal. The child is going to remain with the appellant. The judge had set up another hearing (inter alia) to tidy up various administrative loose ends. We invite written submissions from the parties on how this question can be addressed. Subject to those submissions, however, we would propose ourselves to invite the local authority to produce a report under section 14A(8) in time for the adjourned hearing before Judge Kushner, and for her to reconsider her order having read that report. Although the terms of schedule 1 to the Regulations are onerous, we anticipate that in the instant case all the work has been done, and whilst the local authority may well adhere to the view that an adoption order is preferable, the fact of the matter is that the judge did not agree, and we have upheld her decision. A judge is plainly not bound by the opinion expressed in a section 14A(8) report.

Accordingly, and subject to this last point being satisfactorily resolved, this appeal will be dismissed for all the reasons we have given.