This is the judgment of the court

The parents of AJ, a male child born on 8 April 2001 seek permission to appeal against an order made on 9 August 2006 by His Honour Judge Wyn Richards, sitting in the Swansea County Court. The order which the judge made was to dispense with the consent of AJ’s parents to his adoption by his paternal aunt (Mrs. T) and uncle (her husband, Mr. T) on the ground that it was being unreasonably withheld. The judge also directed that AJ should remain in his present placement pending the final hearing of the application by Mr and Mrs T for an adoption order. In separate written reasons also given on 9 August 2006 the judge refused AJ’s parents’ application for permission to appeal.

On 22 November 2006, the parents’ renewed application for permission to appeal was placed before a single Lord Justice, Wall LJ, for consideration on paper. He directed that the application should be listed before Scott Baker LJ and himself on 6 December 2006 with the appeal to follow if permission was granted. At the outset of that hearing, we granted permission to appeal, but at the conclusion of the argument reserved judgment.

This is the second of three appeals all of which raise the same issue, namely whether or not the child in question should be adopted or should be the subject of a special guardianship order under section 14A(6)(b) of the Children Act 1989 (the 1989 Act) as inserted by section 115 of the Adoption and Children Act 2002 (the 2002 Act).

As will be already apparent, the case was heard under the provisions of the Adoption Act 1976 (the 1976 Act). This is because the adoption proceedings were issued prior to 31 December 2005, when the provisions of the 2002 Act came into force. This meant, of course, that in order to make an adoption order, the court had to be satisfied that adoption would safeguard and promote AJ’s welfare throughout his childhood (section 6 of the 1976 Act) and that his parents were unreasonably withholding their consent to his adoption (section 16(2)(b) of the 1976 Act). In this respect it is to be compared and contrasted with the case of Re S [2007] EWCA Civ 54 which was heard by a different constitution on 23 November 2006, but which is being handed down at the same time as this judgment.

In these circumstances, we do not propose to repeat, but nonetheless incorporate into this judgment paragraphs 41 to 77 of the judgment in Re S, which set out what is suggested should be the general approach of the court to cases which raise the question of special guardianship in the context of adoption proceedings, and which are agreed by all the members of each of the constitutions which heard the three appeals.

Before turning to the facts of this appeal, we would like to record our gratitude to leading and junior counsel and solicitor advocates for AJ’s parents, his prospective adopters and his guardian. The case was extremely well argued on both sides. We were, in addition, provided with a substantial amount of background information, including excerpts from Hansard. We have attached to this judgment a helpful schedule, to which reference is made in paragraph 45 of the judgment in Re S entitled Schedule of Main Differences between Special Guardianship Orders and Adoption which set out those differences in tabular form.

We would also like to pay tribute to the industry of the judge, and the manifest care which he brought to his extremely thorough and well structured reserved judgment.

AJ’s parents were married on 30 October 1998. They were born within weeks of each other and are now both 40. AJ is their only child, although he has a half brother aged 22 and a half sister aged 16 on his mother’s side. He also has a half sister on his father’s side who was adopted in 1992.

AJ was removed from his parents’ care on 9 October 2001, when he was almost exactly 6 months old, and placed with his paternal aunt and uncle, who, in the proceedings before the judge were the applicants for an adoption order. They are now respectively rising 41 (Mr. T) and rising 42 (Mrs. T). They were married in 1985, and have one son, W, who is rising 11.

The judge’s description of the relationship between AJ’s parents is not challenged. He described it as follows: -

Following AJ’s placement with his uncle and aunt on 9 October 2001, his mother obtained a non-molestation order against his father, and his parents separated. However, the judge recorded the social worker as stating that AJ’s parents had separated and re-united at frequent intervals; that their relationship was chaotic; and that they continued to engage in criminal activities. At the date of the hearing before the judge they were, once again, living together, but neither asserted that they were in a position to care for AJ.

The local authority’s care plan in the care proceedings instituted in 2001 was that AJ should remain with his uncle and aunt as long term foster parents, and that his parents should have contact with him. A final care order was made on this basis on 26 September 2002. The judge records, however, that the parents’ commitment to contact with AJ was inconsistent: -

The judge deals with the remaining history as follows: -

Mr and Mrs T issued their application for an adoption order on 24 August 2005. This followed applications by both parents for contact with AJ as a child in care under section 34 of the 1989 Act, and an application by the local authority to refuse contact made on 9 August 2005. The final hearing of the applications took place over a space of 5 days in June 2006, and, as we have seen, the judge’s reserved judgment was given on 9 August 2006. The mother’s appellant’s notice was filed on 6 November, and that of the father a week later on 13 November 2006. Although both notices are very substantially out of time, we decided to extend the time in each case, because of the novel nature of the issues involved.

After summarising the essential issues in six introductory paragraphs, the judge then spends from paragraphs 7 to 18 in an exemplary exegesis of the law relating to adoption under the 1976 Act and the case law relating to dispensation with agreement, followed by a recital of the statutory provisions relating to special guardianship. At paragraph 19 he begins his analysis of the background, and between paragraphs 27 and 31 discusses the evidence of Dr Nicholas Banks, a consultant clinical psychologist instructed on the mother’s behalf on the likely effect of an adoption order in the context of the existing and future family dynamics. We shall return to the judge’s approach to Dr. Banks’ evidence, which was both hostile to the parents’ case and powerfully influential on the judge’s decision.

In paragraphs 33 to 37 the judge records the evidence he heard during the five days the case lasted, and lists an impressive amount of background material which he had read, including case law and academic commentary. He then carefully records the submissions made on both sides. Having done so, he gives his assessment of the principal protagonists, and records in some detail the impression he formed of the various witnesses, including Dr. Banks and AJ’s guardian. He then divides his assessment into three parts. Firstly, he rejects the continuation of the status quo under the existing care order. Secondly, he considers and rejects a special guardianship order as a viable alternative to adoption. He finds the test in section 6 of the 1976 Act satisfied, and goes on to find, applying the relevant case law, that both parents were unreasonably withholding their agreement to AJ’s adoption by his paternal aunt and her husband. He concludes, accordingly, that AJ should be made the subject of an adoption order.

What are the factors which led the judge to this conclusion? There are, of course, several and to a substantial extent they are, inevitably, inter-related. AJ had been with his paternal aunt and uncle since he was six months old. He was the subject of a care order with a care plan initially for permanent placement with his aunt and uncle as a foster child, and latterly for adoption. They were not, however, asking for a special guardianship order, even if their application to adopt AJ was refused. Mrs. T explained that she and her husband had applied for an adoption order as they wished to secure permanence and stability for AJ. In the event that such an order was refused, they wanted the care order to remain in place, even though it did not give them parental responsibility for AJ, and despite the many areas of inconvenience and interference with their normal family life which the retention of the care order brought with it. Their reason for this stance, were stated in Mrs. T’s evidence and recorded by the judge in paragraph 43 of his judgment: -

The judge was very impressed with both Mr and Mrs T as witnesses. He described Mrs. T as “a most impressive witness”, who gave her evidence calmly and clearly. Her devotion to AJ was well demonstrated, and the judge accepted her evidence that “she wished no more than to be allowed the opportunity to bring him up to the best of her ability and to provide him with the same sense of belonging as her son W. The judge was equally impressed with Mr. T. The judge described him as “a calm, mature and well balanced man with a genuine interest in achieving what he believed to be in AJ’s welfare interests.

By contrast, the judge was unimpressed with AJ’s parents. The judge, of course, had the unique opportunity, not open to this court, to make both assessments of credibility and findings of fact. His assessments of the parties cannot be – and are not - challenged. They are of particular relevance in this case because they go to three of the critical issues in the case, namely; (1) which order would be more likely to be in AJ’s welfare interests; (2) which order would better secure AJ’s placement in the household of his aunt and uncle; and (3) whether or not, if the hurdle imposed by section 6 of the 1976 Act was overcome, the parents could be said to be withholding their consent to AJ’s adoption unreasonably.

As to AJ’s mother, the judge’s careful assessment appears in paragraphs 45 and 46 of the judgment. The citation is a lengthy one, but important, we think, to the judge’s overall analysis of the case.

Whilst the judge found that the mother demonstrated some insight into why AJ’s aunt and uncle were seeking to adopt him, he found that the father did not. The judge records an angry outburst from the father whilst Mrs. T was giving her evidence, during which he called her a liar and stormed out of the court room. After summarising his evidence, the judge’s assessment of the father appears at paragraph 53 of his judgment, and is in the following terms: -

The importance of the judge’s assessment of the parents lies, of course, in its relevance to the question of AJ’s security within his placement with his aunt and uncle, and their perception of it. In this context, the evidence of Dr. Banks, which the judge accepted, is equally important. The judge summarises Dr Banks’ report and a subsequent telephone conference in the following terms: -

The judge also recorded and relied upon what he regarded as an important part of Dr Bank’s evidence in so far as it related to AJ’s knowledge and understanding of his place within the family, and which went to the issue of adoption distorting family relationships. In paragraph 29 of the judgment, he records Dr. Banks’ description of visiting AJ in the household of Mr and Mrs. T. J had showed no behavioural or emotional problems. The judgment then records: -

When he came to give his oral evidence, Dr. Banks remained of the view that adoption with direct contact between AJ and his parents was the preferred option The judge describes him as “well qualified to assist the court” and as “an impressive witness. The judge added a further point when relating what Dr. Banks said in oral evidence : -

Both the local authority social worker and the guardian favoured adoption. The former likewise stressed the need for permanence and stability which, she thought, were not to be found in a special guardianship order. She also pointed out that AJ had developed a very strong attachment to his aunt and uncle (and their son W) and that he responded to them as his mother and father. He needed the security of an adoption order so that he knew where he belonged.

The social worker also agreed with Dr. Banks that an adoption order would not result in a distortion of family relationships. AJ had a clear understanding of who his birth parents were and why he was placed with his aunt and uncle.

AJ’s guardian was also of the same opinion. She took the view that there was no longer any reason for the local authority to remain involved. A continuing care order was only necessary if Mr and Mrs T were not granted the legal status which adoption would give them. She was concerned that a special guardianship order would give rise to further applications about school, health and AJ’s return to his parents, all of which would upset the stability of the placement. She also agreed that an adoption order would not distort or skew family relationships. Although the case was finely balanced, her view was that adoption was the right course, and that reasonable parents would recognise that they could not care for AJ now or in the future and would want stability and permanence for their child.

The judge rejected the status quo. There were many disadvantages in Mr and Mrs T being without parental responsibility for AJ. Mr and Mrs T’s care for AJ over the years demonstrated that the care order was “an unnecessary interference with the spontaneity of their family life and was not the right solution for AJ”. There is no challenge to this finding.

The judge next examined the arguments for and against a special guardianship order. He repeated Dr. Banks’ view that a special guardianship order was a viable alternative to adoption if – but only if – the court could guarantee that it would not be contested in the future. That, however, as had been conceded by the mother’s solicitor, was not possible. Although leave would be required to challenge the special guardianship order or to apply for a residence order, an application for any other order under section 8 of the 1989 Act could be made without leave, absent a restriction imposed under section 91(14). The judge therefore concluded: -

The judge then went on to consider adoption. He found the test in section 6 of the 1976 Act satisfied. This finding is formally challenged in the appellants’ notices, but is not their foremost point of attack. In our judgment, the judge’s finding that adoption would safeguard and promote AJ’s welfare throughout his childhood is, on the facts of this case, unassailable. We will, however, return to the point later.

The judge begins the section of his judgment dealing with parental consent to adoption by making a reference to the parents having “every right in law not to consent to a freeing order”. We find this a puzzling reference, as an application to free AJ for adoption was not before him. In the event, however, nothing turns on the point, since the criteria for dispensation were the same for both freeing a child under section 18 of the 1976 Act and for making an adoption order under section 16.

The judge’s reasoning on the dispensation question seems to us to involve the following considerations: -

Bearing these factors in mind, the judge concluded as follows: -

The six substantive grounds of appeal are all premised on the proposition that the judge was wrong in law to have held that the parents’ consent to AJ’s adoption was being unreasonably withheld within section 16(2)(b) of the 1976 Act. In essence, they can be summarised as follows:

Although, as we have already stated, the case was extremely well argued on both sides, we have come to the conclusion that it would unduly lengthen this judgment to set out all the arguments advanced to us in detail, not least because, in the event, we agree with Miss Lorna Meyer, QC, for the prospective adopters and for AJ (who sensibly combined forces in this court) that the case depends essentially upon the careful exercise of a judicial discretion to particular facts. We will, however, set out Miss Ruth Henke QC’s first and fundamental submission in the body of this judgment.

Miss Henke launched and developed a root and branch attack on the judge’s reasoning. Her first submission was that that since the implementation of section 115 of the 2002 Act, there existed in this case an order more appropriate than an adoption order under the 1976 Act to secure AJ’s placement with Mr and Mrs T, namely a special guardianship order under S14A of the 1989 Act. There was therefore no need for the judge to make an adoption order. Furthermore, the parents could not be said to be withholding their consent to that adoption unreasonably when they were prepared to agree to AJ continuing to live with Mr and Mrs T under the security of a special guardianship order with a restriction order under S91(14) of the 1989 Act.

Miss Henke did not dispute that the judge had been correct to hold that under the 1976 Act the court had to go through a two stage process if it was to make an adoption order. However, the first stage – the consideration as to whether adoption would safeguard and promote the child’s welfare throughout his childhood - had now to be read in the light of the implementation of section 115 of the 2002 Act.

When considering whether to make an adoption order or a special guardianship order in a familial placement case such as AJ’s, Miss Henke submitted that the correct approach of the court should be to prefer the making of an special guardianship order unless a special guardianship order, in the words of Hedley J in S and B v Newport City Council (as yet unreported) at para 21 in particular, “really cannot meet the needs of the child concerned” .

In the instant case, Miss Henke submitted that the judge had been simply wrong to conclude that a special guardianship order was not a “viable alternative” and that something more than a special guardianship order was necessary. This was because the effect of an adoption order was to give lifelong status to Mr and Mrs T as AJ’s parents and to extinguish the parental responsibility which AJ’s parents had for him. Mr and Mrs T, his paternal aunt and her husband would become his mother and father. The parents would become his maternal uncle and his wife. W, Mr and Mrs T’ natural child would be his brother rather than his cousin. The skewed family dynamics would endure throughout his life. Whilst Dr Banks had been of the opinion that an adoption order would not create distortion for AJ his view was limited to a consideration of psychological perceptions. The reality is the making of an adoption order would, as a matter of law, distort the legal status of the parties and their relationship to each other. Given the effects of a special guardianship order, Miss Henke submitted that in this case there was no need to change the parties’ legal status and their relationship to each other.

For the prospective adopters and for AJ, Miss Lorna Meyer, QC’s primary submission was that, stripped to its essentials, this appeal was no different from any other case involving the exercise of a judicial discretion in relation to the welfare of children. She argued that the judge had directed himself carefully as to the law, made clear and unassailable findings of fact, and had exercised his discretion appropriately on the basis of the facts as found. In these circumstances, she argued, the well known principles set out by the House of Lords in G v G (Minors Custody Appeal) [1985] FLR 894 applied. The passage from the speech of Lord Fraser of Tullybelton is well known, but always bears repetition: -

Miss Meyer also relied on the well known decision of this court in Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230 to the effect that the more difficult the decision and finely balanced the conclusion the less prospect there is of that conclusion being successfully appealed.

Although the detailed arguments deployed on each side identified the points which can properly be made in a case in which the choice for the judge is between special guardianship and adoption, we are of the view that Miss Meyer’s primary submission is correct, and that this appeal must be dismissed.

We respectfully disagree with Miss Henke that special guardianship orders have effectively replaced adoption orders in cases where children are to be placed permanently within their wider families. No doubt there are many such cases in which a special guardianship order will be the appropriate order, but as this court points out in paragraph 61 and elsewhere in its judgment Re S, each case will fall to be decided on what is in the best interests of the particular child on the particular facts of the case. Moreover, each such decision will involve the careful exercise of a judicial discretion applied to the facts as found.

In the instant case, the judge’s findings of fact and his assessments of the parties are, in our judgment, not only of critical importance, but determinative of outcome. AJ had been with his paternal aunt and uncle since the age of 6 months. He and his carers both plainly need the assurance that the security of that placement could not be disturbed. That assurance could not be provided by a special guardianship order: it could only be provided by adoption.

The judge was, in our judgment, plainly entitled to find as a fact that the mother in particular had never given up on regaining AJ’s care. His two findings that there was a real possibility of future applications to the court, and that those applications would be disruptive of the placement were manifestly open to him on the evidence. All the expert evidence in the case, including, of course, that of Dr. Banks, was to like effect. These factors are all clear pointers towards adoption.

In our judgment it is no answer to assert that any application to revoke a special guardianship order and / or to seek a residence order requires the court’s permission, or that any application for permission to apply for contact and other section 8 orders can be regulated so as not to disturb the child or his carers by filtering them through section 91(14) of the 1989 Act. In situations where the parties are not in contact – where, for example, parties do not know where their former partners and their children are living – it may well be possible to direct that any application under section 91(14) shall not, in the first instance, be served on the resident parent, and that the application can thus be resolved by the court without the resident parent and the children concerned even being aware that it has been made. Such considerations do not, however, in our judgment, apply in cases such as the present where the parents of the child are having regular contact. In such cases it is unreal to suppose that Mr and Mrs T will be unaware that AJ’s parents had made an application to the court. Even if that application stood no prospect of success and was, in the event, dismissed, the threat of disruption and disturbance would remain.

On the question of adoption, it is plain to us that on the facts of the case it was open to the judge properly to find that the test contained in section 6 of the 1976 Act was satisfied. Once a special guardianship order is seen in its factual context, any argument to the contrary in this case simply evaporates.

On the question of dispensation with parental agreement to adoption, we agree with Miss Meyer that the judge cannot be faulted either on his analysis of the correct, albeit now repealed, law or on his application of that law to the facts of the instant case. This, in our judgment, is a case within the well known statement in the speech of Lord Hailsham of Marylebone LC in Re W (an infant) [1972] AC 682 at 699, in which the hypothetical reasonable parent would see that AJ’s welfare was the decisive issue; that it required his permanent and secure placement with Mr and Mrs T; and that accordingly adoption was the right course for him. Such parents, as the judge found, would have given their agreement to his adoption and can legitimately be described as “unreasonably” withholding their agreement within section 16(2)(b) of the 1976 Act, particularly as interpreted in both Re W and in the judgment of Steyn and Hoffman LJJ in Re C (A Minor) (Adoption: Parental Agreement: Contact)[1993] 2 FLR 260 at 272G-H.

It is, we think, unfortunate that this case falls to be decided under the 1976 Act, but we are entirely satisfied that had it been heard under the 2002 Act, the result would have been the same.

We also respectfully agree with the judge that an adoption order in the instant case does not unduly distort the family dynamics. For the reasons which this court gives in paragraphs 51 and 52 of its judgment in Re S, the question of the likely distortion of family relationships by an adoption order is very fact specific, and should not be overplayed. In the instant case, AJ knows precisely who he is. He knows that his birth parents are Mr and Mrs J and that they are unable to look after him. He knows he is living with his aunt and uncle. He is not confused, nor is he likely to be in the future. What matters for him is that he should be fully accepted and cared for by his aunt and uncles as a member of their household, and as a brother to W. The difference between brother and cousin on the facts of this case is readily understandable: what matters is the relationship between the two children. In our view it is not a major or negative distortion of family relationships in this case for cousins to grow up together as brothers.

It is, of course, trite law that in the twenty-first century, an adoption order is not inconsistent with ongoing contact between the children concerned and their birth parents. In the instant case, it is important for AJ to retain a knowledge of, and, we hope, an affection for, his parents. As we have already stated, he knows who they are, and why they cannot care for him. On the evidence available to the judge, AJ is not remotely confused by the position in which he finds himself.

In the event, the question of the judge making a special guardianship order against the wishes of Mr and Mrs T did not arise, and what the judge said about it was plainly obiter. This court has discussed the question in paragraphs 73 to 77 of Re S and we do not proposed to repeat what was said in that case. Equally, the relevance of the two cases decided at first instance is discussed in paragraphs 53 to 61 of Re S, and, once again, we adopt what is there set out.

For all these reasons, and despite the full, careful and helpful arguments advanced on the parents’ behalf, we are of the opinion that this appeal fails and must be dismissed.