RAP v Serial No. 52/2006 & Ors

This is the judgment of the court, to which each of its members has contributed.

With permission granted by the judge in the court below, the father of S, a female child born on 30 August 2005, appeals against an order made by HH Judge Corrie sitting as a Judge of the Family Division in the Oxford County Court on 4 April 2007, whereby, in adoption proceedings issued under the Adoption and Children 2002 (the 2002 Act) by S’s prospective adopters (the applicants), he refused her parents’ application for leave to oppose the making of an adoption order. By a respondent’s notice dated 21 May 2007, S’s mother supports the father’s appeal. It is, however, opposed by the adoption agency, by the prospective adopters of S, and by S’s guardian in the adoption proceedings.

This is, we were told, the first case to reach this court in which the “leave” provisions in section 47 of the 2002 Act fall to be considered. We were also told that there was a concern about how the provisions of sections 1(7) and 47 of the 2002 Act should be addressed at first instance, and that guidance from this court on the application of those two sections of the 2002 Act would be welcomed. Moreover, it seems to be because, as the judge put it, “there appears to be no authority on the basis upon which such applications should be considered”, that the parents’ application for leave to defend the adoption proceedings was transferred to the High Court for hearing. Similar considerations appear to have influenced the judge in giving permission to the parents to appeal. In the event, however, the application was not heard by a Judge of the Family Division. It was agreed between the parties that Judge Corrie was best placed to determine it, since he had conducted both the care and the placement proceedings.

For the purposes of introducing the issues raised by the appeal, the facts can be very shortly summarised. S’s parents are married, although at the time the proceedings were first before Judge Corrie, they had enjoyed what the judge found to be a highly volatile relationship, punctuated by serious violence inflicted by the father on the mother, and exacerbated by a mutual abuse of alcohol and illicit drugs. The result was the removal of S from her parents’ care by means of an emergency protection order made on 1 September 2005, the institution of care proceedings by the local authority, and a care order made by Judge Corrie on 8 May 2006, following a substantive and fully contested hearing.

The local authority’s care plan was for S to be adopted by strangers, and on 28 June 2006, Judge Corrie made a placement order under section 21 of the 2002 Act. The placement order was opposed by the parents, although no oral evidence was taken. In making the order, the judge dispensed with both parents’ consent to the placement. S, who had previously been living with foster parents, was duly placed with the applicants on 7 July 2006. She has remained in that placement since that date, where on the evidence before the judge, she has both thrived and become fully integrated as a member of the applicants’ family. On 26 November 2006, the applicants issued proceedings to adopt S, and those proceedings are currently due to be heard on 10 August 2007 before HH Judge Compston, with a time estimate of three hours.

There was no appeal to this court by S’s parents against either the care order or the placement order. They did apply to the judge in the care proceedings for permission to appeal against his refusal to direct a residential assessment under section 38(6) of the Children Act 1989 (the 1989 Act). That application was, however, refused by the judge and, so far as we are aware, was not renewed in this court.

The mother gave birth to the parents’ second child, H, on 11 August 2006. Following his birth, the parents underwent a successful residential assessment, and although H’s name has been placed on the child protection register by the local authority, no care proceedings have been issued or are in prospect in relation to H, who is living with, and being cared for by his parents, who remain together as a couple. Indeed, the mother is currently pregnant with the parties’ third child, whose expected date of birth is 6 September 2007.

On the application for leave to defend the adoption proceedings, the parents’ case before the judge, in a nutshell, was that they both (but in particular the father) had addressed all the deficiencies in their lives and in their parenting of S identified by the judge in the care and the placement order proceedings. They were successfully caring for H. In addition, the father had resumed contact with his two children (born in 1998 and 1999 respectively) from a previous relationship, who regularly stayed for weekends at the parents’ home.

The particular significance of the resumption by the father of his relationship with these two children was that his relationship with their mother had also been violent, and she had previously opposed his contact with them. There had, moreover, been care proceedings relating to those two children, and in those proceedings the draft threshold criteria (apparently not disputed by the father’s previous solicitors, albeit not accepted by the father) comprised allegations of domestic violence by the father such as to render the two children likely to suffer significant harm. On any view, therefore, the satisfactory resumption by the father of contact with these two children was an extremely positive sign.

Before the judge, therefore, both parents sought leave to defend the adoption proceedings. They asserted that there had been “a change in circumstances since the placement order was made” within section 47(7) of the 2002 Act sufficient to make it appropriate for the judge to give them leave to defend the proceedings.

The judge rejected their application for leave to defend the adoption proceedings for two main reasons. Firstly, he was not satisfied that there was a sufficient change in their circumstances to cross the leave threshold. Alternatively, however, if he was wrong about that, he held that S’s welfare, which he found to be his paramount consideration, required her to be adopted. The judge’s approach, it seems to us, is summed up in paragraph 57 of his reserved judgment delivered on 25 April 2007 in which he says:-

For the father, Miss Eleanor Platt QC challenges both limbs of the judge’s conclusion. Firstly, she argues that the judge was wrong to find that there had been an insufficient change in the parents’ circumstances to cross the leave threshold. Secondly, she submitted that the judge had in any event been wrong to hold that S’s welfare was the court’s paramount consideration on an application for leave to defend adoption proceedings.

In order to test Miss Platt’s arguments, it is, firstly, necessary to examine the relevant statutory provisions. We need not, we think set out the terms of sections 21 and 22 of the 2002 Act, which deal with placement orders. We go, accordingly, straight to section 47. That section, which is headed: Conditions for making adoption orders provides by section 47(1) that, subject to section 52 (parental consent):-

For present purposes, the second condition, set out in section 47(4) and (5) is the condition which applies. These two sub-sections, as they apply to this appeal, read:-

The criterion for granting leave is set out in section 47(7), which provides:-

However, in approaching the grant or refusal of leave for a parent to defend adoption proceedings under section 47, the question which immediately arises is whether or not the provisions of section 1 of the 2002 Act apply to the application. Section 1(2) provides that where section 1 applies, “The paramount consideration of the court or adoption agency must be the child’s welfare throughout his life”. By section 1(1), section 1 applies “whenever a court is coming to a decision relating to the adoption of a child”. The question thus becomes: is an application by a parent for leave to defend adoption proceedings “a decision relating to the adoption of a child?”

The answer to this question is provided by section 1(7) which, it seems to us, is poorly drafted and unnecessarily obscure. We will set it out in full:-

The reference to section 26 of the 2002 Act is a reference to an order under section 26(2)(b), which empowers the court to make an order for contact between S and her parents. The parents are indeed making such an application, although it does not impinge on the arguments addressed to us on this appeal.

Some time was spent in argument debating the meaning of section 1(7) of the 2002 Act. Having considered the matter carefully, however, we have come to the conclusion that the judicial decision whether or not to give leave to a parent to defend adoption proceedings under section 47(5) is “a decision relating to the adoption of a child” and that, accordingly, it is governed by section 1 of the 2002 Act. We reach that conclusion for the following reasons.

It is, we think, plain that the application by the parents for leave to defend the adoption proceedings is not “the initiation of proceedings in any court” within section 1(7)(b). The question is whether or not the parents should be given leave to defend proceedings which are plainly in existence. Those words can, accordingly, be omitted from our consideration of section 1(7)(b). The question thus becomes whether or not the decision to grant or refuse leave to defend the proceedings within section 1(7) (b) includes “any action which may be taken by an individual under this Act.”

In our judgment, the answer to that question must be in the affirmative. On the plain language of the statute, the court is coming to a decision about granting leave in respect of the action taken by the parents in applying for it in order to defend the proceedings. The decision whether or not to grant leave must, accordingly, in our judgment be within the definition of “coming to a decision in relation to the adoption of a child” contained in the opening words of section 1(7).

For the local authority, Mr. Pressdee, who argued for that construction, sought to persuade us that the decision to grant or refuse leave to defend the adoption proceedings also came within section 1(7)(a), since the court in the adoption proceedings was coming to a decision in those proceedings where, self-evidently, the orders which might be made by the court included an adoption order or an order for contact. The difficulty we have with that submission is that if it is right, it renders section 1(7)(b) redundant. Furthermore, section 1(7)(b) is expressly addressed to the question of leave, whereas section 1(7)(a) simply refers to “a decision in any proceedings”, a phrase which, absent the specific reference to “granting leave” in section 1(7)(b) might be construed as excluding the grant of leave.

This leaves the final 15 words of the sub-section: “but does not include coming to a decision about granting leave in any other circumstances”. We have to say we find the language of this particular phrase opaque. Almost any construction of it can legitimately give rise to the rhetorical question: “if that is what it means, why did not Parliament say so?” However, it seems to us that the answer lies in the fact that section 1(7)(b) relates exclusively to applications for leave under the 2002 Act (“under this Act”). Section 1(7)(b) thus plainly covers a decision about whether or not the parents should be given leave to defend the adoption proceedings. It follows, we think, that “coming to a decision about granting leave in any other circumstances” can only mean decisions about granting leave under other, and different statutory provisions. Thus, to take an obvious example, an application for leave to apply for a special guardianship order under section 14A(3)(b), (4) and (7) of the 1989 Act would not be within section 1(7)(b) of the 2002 Act because it would not be made under that Act, but under the 1989 Act.

Equally, in our judgment, the statutory criteria contained within section 10(9) of the 1989 Act and which apply to an application for leave to apply for a section 8 order under the 1989 Act are quite different from those which apply under section 1(7)(b) of the 2002 Act. Furthermore, in deciding an application for leave under section 10(9) of the 1989 Act, the court is not determining any question with respect to the upbringing of a child. Accordingly, section 1 of the 1989 Act does not apply to it, and the child’s welfare is not the court’s paramount consideration: - see the decision of this court in Re A (minors) (residence orders: leave to apply) [1992] Fam 182.

In our judgment, therefore, the effect of the final 15 words in section 1(7) of the 2002 Act is that “coming to a decision relating to the adoption of a child” within section 1(1) and 1(7) of the 2002 Act only applies to decisions under the 2002 Act: it does not include coming to a decision about granting leave in any other circumstances, including, of course, decisions about granting leave in proceedings under the 1989 Act.

In our judgment, analysis of the statutory language in sections 1 and 47 of the 2002 Act leads to the conclusion that an application for leave to defend adoption proceedings under section 47(5) of the 2002 Act involves a two stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change in circumstances within section 47(7). If there has been no change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within section 47(7) then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is opened, and the decision whether or not to grant leave is governed by section 1 of the 2002 Act. In other words, “the paramount consideration of the court must be the child’s welfare throughout his life”.

Before examining in greater detail how the discretion, if it arises, falls to be exercised, it is, we think, necessary to decide what is meant by the phrase “a change in circumstances since the placement order was made” in section 47(7) of the Act.

For the father, Miss Platt accepted that not every change in circumstances would suffice to open the door to the exercise of the judicial discretion identified in paragraph 26 above. She accepted that the change in circumstances had to be relevant or material to the question of whether or not leave should be granted. She invited us, however, to decline to put any further gloss on the statute. Parliament, she argued, could have attached an adjective such as “significant” to the phrase “change in circumstances”, as indeed it had done in section 14D(5) of the 1989 Act in relation to the variation or discharge of a special guardianship order.

Miss Platt submitted that in making a change in circumstances the pre-requisite for the exercise of the discretion under section 47(7), Parliament had chosen not to qualify the change in circumstances in any way. What was required was, simply, “a change in circumstances”. Miss Platt was, moreover, able to argue that the point was reinforced by the fact that the special guardianship provisions in the 1989 Act referred to in paragraph 28 above were themselves contained within and introduced through the mechanism of the 2002 Act. The word “significant” which Mr. Pressdee invited us to attach to the phrase was simply not there, and had crept in, she argued, only through Hansard, to which the judge had been referred, and, at best, represented the relevant ministers’ view. This was not, she argued, a satisfactory aid to statutory construction.

We agree with Miss Platt’s submissions on this point. We do not think it permissible to put any gloss on the statute, or to read into it words which are not there. The change in circumstances since the placement order was made must, self-evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings. In our judgment, however, the phrase “a change in circumstances” is not ambiguous, and resort to Hansard is both unnecessary and inappropriate.

Furthermore, in our judgment, the importation of the word “significant” puts the test too high. Self-evidently, a change in circumstances can embrace a wide range of different factual situations. Section 47(7) does not relate the change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances “since the placement order was made”. Against this background, we do not think that any further definition of the change in circumstances involved is either possible or sensible.

We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S’s parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable. We therefore take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application.

Far more important, in our judgment, is the manner in which the experienced judges who are likely to undertake the bulk of these unusual applications exercise their welfare discretion under section 1 of the 2002 Act. We have already considered the terms of section 1(1), 1(2) and (7). The critical part of the section is, of course, sub-sections (3) and (4). The latter sets out its own check-list of factors to which the court must have regard. These two sub-sections read as follows:-

Section 1(5) of the 2002 Act is immaterial for present purposes, but section 1(6) reads:-

Thus, even if the parents are able, on the facts, to identify a change in circumstances sufficient to make it appropriate for the judge to consider whether or not to exercise his discretion to permit the parents to defend the adoption proceedings, the paramount consideration of the court in the actual exercise of the discretion must be the welfare of S throughout her life, and in that context the court must have regard in particular to the matters set out in section 1(4).

In our judgment it is the manner in which the judge exercised his discretion which is determinative of this appeal.

As paragraph 57 of his judgment (cited at paragraph 11 above) makes clear, the judge was not satisfied that there had been a sufficient change in the parents’ circumstances to trigger consideration of the exercise of the discretion to grant or to refuse the application. In our judgment, Miss Platt is entitled to question whether or not the judge was right on that point, and had he simply dismissed the application on the basis that no relevant change in circumstances had been shown, Miss Platt may well have persuaded us that the parents’ appeal should be allowed.

In the event, however, we think this a secondary consideration because the judge properly decided that if he was wrong on the change in circumstances point, the application fell to be considered by the application to it of the criteria set out in section 1 of the 2002 Act. In our judgment, he was plainly right to take that course. In the event, therefore, we do not think we need to decide whether or not there was a relevant change in circumstances. What, in our judgment, is fatal to the parents’ case on this appeal is the fact that the judge – as paragraph 57 of the judgment makes clear - proceeded to decide the case by reference to the paramountcy of S’s welfare as required by section 1 of the 2002 Act.

In our judgment, the judge’s application of section 1 of the 2002 Act to the facts of this case cannot be faulted, and the exercise of judicial discretion thereby demonstrated was – to put the matter at its lowest – plainly open to him.

To make good this analysis, however, it is necessary to re-visit the facts of the case. We do so as briefly as possible, as we have no wish to distress S’s parents, or unwittingly to put any further obstacles in their path relating either to their care of H or to their capacity to care for their unborn child.

It is, however, plain that the judge was fully aware of the principle famously enunciated by Lord Templeman in Re KD (A minor) (Ward: Termination of Access) [1988] 1 AC 806 at 812, which he set out in full in paragraph 33 of his judgment. and which has been accurately described elsewhere as the right of children to be brought up by their natural parents with their full siblings unless their welfare positively demands the displacement of that right.

The judge, however, had that inestimable advantage of judicial continuity, namely that of knowing the case well. In the care proceedings, the threshold criteria under section 31 of the Children Act 1989 were amply satisfied by clear and unchallengable judicial findings of serious domestic violence by the father on the mother, coupled with what the judge described in relation to both parents as “a capacity to minimise and distort and on occasion not to tell the truth at all”. We do not need to itemise the findings: they are there in the care proceedings judgment to be read if need be.

Having, in the care proceedings, found the threshold criteria under section 31 of the Children Act 1989 satisfied, the judge then carefully applied the so called “welfare check list” under section 1 of the 1989 Act. His conclusion was that neither parent was capable then or in the foreseeable future of meeting S’s needs and certainly not within the time-scale dictated by S’s need for a secure and permanent placement. In reaching that conclusion, the judge, as we have seen, rejected the parents’ application for an assessment under section 38(6) of the 1989 Act. He took the view that there was no reasonable prospect that the assessment proposed would succeed, and added that even if it did, it would not do so “soon enough”. He continued:-

We have already made the point that there was no appeal to this court against the care order. That is not said as a criticism, but as a statement of fact. We have to say that we do not think an appeal would have stood any reasonable prospect of success. What stands out from the care proceedings judgment is the fact that the judge was fully entitled to make his findings of fact; and he was fully entitled to make a care order in relation to S with a care plan for adoption outside the family.

The next stage of the proceedings was the hearing in relation to the placement order. The parents’ case was that the proceedings should be adjourned for about three months to abide the assessment which the parents were to undergo with H, whose birth took place on 11 August 2006. The judge rejected that approach. Prospective adopters had been identified. The main priority in the care proceedings had not changed. S’s primary need was the identification of a permanent and stable placement in which she could form firm and lasting attachments to her carers. The parents’ wish to include S in the assessment which they were to undertake in relation to the unborn child remained speculative in terms of its prospects of success. The judge was fully aware that he was depriving S of the possibility of being brought up with a full sibling, and equally conscious that the parents were making strenuous efforts to address their difficulties. He nonetheless found that a placement order was in S’s best interests and dispensed with the parents’ consent to it.

Once again, it has to be said that, in our judgment, there was an entirely proper basis upon which the judge could reach his conclusion that placement for adoption was in the best interests of S. Once again, the decision was not challenged on appeal. Moreover, the placement order judgment was delivered on 5 July 2006, when S was only a little over 10 months old. Two days later, according to the chronology, she was placed with the applicants. The application for permission to defend the adoption proceedings was heard eight months later. As we have already recorded, the judge was told, as were we, that the placement with the applicants has been successful, and that S has formed firm attachments with the applicants.

It follows, in our judgment, that when exercising his discretion under section 47(5) of the 2002 Act the judge was fully entitled – indeed bound – to give considerable weight to the fact that, from the date of the care order (May 2006) until the date of the hearing of the application for leave to defend the adoption proceedings (April 2007), a period of nearly a year, the plan for S had been adoption; that the plan had, moreover, been implemented by S’s placement with the applicants in July 2006, and that it was a plan which was working.

By the time the application for leave came to be heard, the mother was pregnant with the parents’ third child. The judge was, accordingly, bound to take into account the fact that, if the adoption application was refused and S in some way returned to her parents’ care (perhaps by revocation of the care and placement orders) they would be caring for three children under the age of 3.

The bulk of the judge’s judgment is taken up with the question of whether or not there had been a change in circumstances within section 47(7). No doubt that reflects the manner in which the case was presented to him. However, when he came to consider the exercise of discretion, his clear view was that, on the merits, the parents would have no realistic prospect of succeeding in their opposition to the proposed adoption application. S’s needs remained the same: a secure and permanent placement in which she could form and maintain proper attachments to her carers. That was an entirely proper approach for the judge to take.

The judge was reinforced in that conclusion by going through the checklist provided in section 1 of the 2002 Act. His conclusion was that it was in S’s best interests to be adopted, and that in the context of the parents as carers, there was “simply no or minimal evidence that they are capable within this child’s timescale of providing her with the secure environment in which she can develop and otherwise of meeting her needs”.

In our judgment, the judge was fully entitled, for the reasons he gave, to reach those conclusions. In doing so, he correctly took S’s welfare as his paramount consideration. Had he been conducting an application for leave to apply for a section 8 order under the 1989 Act, his approach could have been criticised. But for the reasons which we have given, the test under section 47(5) is welfare, and on the application of the paramountcy test, the judge in our view was fully entitled to come to the conclusion that S’s welfare continued to require her to be adopted by the applicants. We therefore take the view that this appeal must be dismissed.

Miss Platt attempted to mount an argument to the effect that the hearing of the application by the parents before the judge for leave to defend the adoption proceedings was unfair because it was not what she described as a full welfare enquiry in which oral evidence was given. We have no hesitation in rejecting that submission for a number of reasons. Firstly, and most obviously, the parents did not seek to give oral evidence, and no notice was given that any of the local authority’s witnesses were required for cross-examination. Furthermore, the parents were each separately and ably represented by junior counsel. As the judgment demonstrates, all the arguments properly open to them were fully deployed. In these circumstances, we think it impossible for Miss Platt to argue that the hearing was unfair.

There is, however, a wider point of more general application. The object of the 2002 Act was to simplify the adoption process and to reduce delays in children being placed for adoption and adopted. The instant case had already gone through two substantive hearings, albeit that oral evidence was not called at the placement order hearing. We thus view with great concern the argument that an application for leave under section 47(5) requires a full welfare enquiry, with oral evidence and cross-examination.

In our judgment, the fact that a judge is taking the welfare of a child as his paramount consideration does not mean that he must conduct a full welfare hearing with oral evidence and cross-examination in order to reach a conclusion. An experienced judge such as Judge Corrie is, in our judgment, fully entitled to conclude that such a hearing can fairly be conducted on submissions. Of course, there may be cases in which a particular factual issue requires resolution through oral evidence, but in the instant case oral evidence was plainly unnecessary. Indeed, as paragraph 57 of the judgment demonstrates, the judge effectively decided the case on the basis that even if the parents had established the facts of the material change in circumstances they alleged, the exercise of a welfare based discretion remained fatal to their application. To reach such a conclusion, a judge who has a detailed knowledge of a case does not, in our judgment, need oral evidence.

In summary, therefore, judges hearing applications by parents for leave to defend adoption proceedings after a placement order has been made, need to undertake a two stage process. Firstly, they need to be satisfied on the facts of the case that there has been a change in circumstances since the order was made which is material, and of a nature and degree which is sufficient to open the door to a consideration by the court of the exercise of its discretion to give the parents leave to defend. If the court finds such a change in circumstances, the second stage is reached and the question of leave falls to be decided by the application of section 1 of the 2002 Act to the facts of the case. The paramount consideration of the court must be the child’s welfare throughout his or her life.

In addition, when deciding either limb, the judge has a discretion whether or not to hear oral evidence. It would be perfectly proper, for example, for the judge in an appropriate case to assume as true the facts asserted by the parents, and equally proper for him to dismiss the application on the ground that it was not in the interests of the child for the parents to be given leave to defend the proceedings. It is not necessary for the judge to conduct a full welfare hearing unless the issues which arise for decision positively require such a hearing, or require oral evidence in one of more particular respects.

For all these reasons, this appeal will be dismissed.