C (A Child), Re

This is an application by TC and SM for permission to appeal against an order made by HHJ Daley, sitting in the Liverpool County Court on 23 April of this year. The judge refused their application for permission to oppose an application for adoption, which is being made in relation to their daughter, whom I will only call C, who was born on 6 June 2006 and is thus now two years old.

This is a very sad case. Miss C has altogether had four children, and I only mention the history because I played some part in it when I sat at first instance. Her first child was a little boy called M, born on 30 June 1998. He died very young, and I had to investigate the circumstances in which he died. There is in the papers I have seen a judgment which I gave on 19 April 2000 in which I made a number of findings about M.

At that point I was concerned with Miss C’s second child, B, who was born on 4 January 2000. Initially I made a care order in relation to B and the idea was that B would live with his mother under the care order. However, for reasons I need not go into today, that plan did not work and the result was, when the matter came before me on 11 December 2002, I refused Miss C’s application to discharge the care order and made a freeing order in relation to B. He was subsequently adopted, as was Miss C’s third child, L, who was born on 29 March 2003. On 11 November 2003 L’s case came before HHJ Daley, sitting in Liverpool, and she made a care order in relation to him and freed him for adoption My understanding is that L and B have been adopted together.

In these proceedings HHJ Daley was concerned with Miss C’s fourth child, also her second child by Mr M, C, who, as I have already said, was born on 6 June 2006. On 23 April 2007, in a judgment which is recorded and which I have read, the judge heard contested care proceedings in relation to C, together with the application by the local authority for a placement order under the 2002 Adoption and Children Act. The judge granted those applications, with the result that on 25 May C was placed with her prospective adopters, where she has remained.

Miss C and Mr M appealed or sought permission to appeal against HHJ Daley’s decision. Initially the application came before my Lord, Ward LJ. He adjourned it to the full court with the appeal to follow if permission was granted. The result was there was a full hearing and on 9 October of last year the application for permission to appeal was refused.

The effect of a placement order combined with the care order means that Miss C and Mr M can only oppose the prospective adoption with the judge’s permission and it was of course that application which came before the judge in April 2008.

I need to explain a number of things before I go any further. The first is that I asked Miss C at the very outset of the proceedings today whether she was content that I should hear the case, given that I had dealt with B and M. She was content that I should do so, and I think I can say without offending any of the rules that it is clear from all the papers that Miss C is not now today the woman she was when I dealt with her back in 2000 and 2002; she has undoubtedly matured.

However, common theme of the proceedings, really going back to 2000, was that although Miss C was not mentally ill in any way, she suffered from certain personality defects, which are not her fault, based entirely on her upbringing (or lack of it), with the result that what she needed in order to come to terms with her very difficult past was an extensive process of psychotherapy. I do not think I am being unfair to Miss C when I say she was initially resistant to that, but latterly she has embraced it and so when the matter came before HHJ Daley in April, Miss C had been having quite a long series of sessions with a psychologist.

I also have to explain to Miss C and to Mr M that sitting as I now do in the Court of Appeal, I cannot go behind any of the orders made previously by this court on 9 October or prior to 9 October. This court refused Miss C and Mr M’s application for permission to appeal and therefore I start from the premise -- I have to start from the premise, my powers do not allow me to do anything else but to start from the premise -- that there was a care order in relation to C; that she was made the subject of a placement order; and that she was placed with prospective adopters on 25 May 2007. These are the facts from which I have to start.

Equally, I have to explain that the circumstances in which C was removed from her mother at birth, about which Miss C makes very vigorous complaint, as does Mr M, are not matters I have investigated or can investigate. I have to start, as I say, from the premise that the order made on 23 April 2007 was properly made and that it was the subject of an unsuccessful application for permission to appeal.

Furthermore, when I come to look at what HHJ Daley did on 23 April 2008 my powers are once again similarly limited. The questions I have to ask myself are: did the judge get the law wrong? Has she made an error of law or is it arguable that she made an error of law? And if she did not make an error of law, is it arguable that she has exercised her discretion in a way which would entitle this court to interfere with it?

HHJ Daley knew the case well. That is a matter of criticism from particularly Mr M this morning, although Miss C joined in to an extent. Miss C and Mr M have the distinct impression that the judge is biased against them, that she is only interested in what Mr M described as I think adoption statistics or adoption targets and that she wanted to get the case out of court as quickly as possible. She was biased in favour of social services; she did not give them a fair hearing.

It is right to say that the Court of Appeal when it heard the matter in October did not agree with that analysis and thought that the criticisms which Miss C and Mr M made of the judge unfair. That again is something which I cannot get behind.

So when I look at what HHJ Daley did, the first thing I have to ask myself is, did she get the law wrong? The law is very clear because, as I indicated, section 47(5) of the 2002 Act empowers the court to give permission to parents to oppose a prospective adoption if there has been a change in the circumstances since the original order for placement was made.

The question what that section means has been to this court, and in this court it was decided that there was a two-stage process. The first stage was to ask, has there been a change of circumstances? If the answer to that question is “no”, that is the end of the matter because the case does not even get off the ground. However, if there has been a change of circumstances then the judge has a discretion. The change of circumstances unlocks the door to discretion and the judge can exercise the discretion to allow the parents to defend if the judge decides that such a course is in the best interests of the child.

The first point is that the judge went straight to that case, which she cites at paragraph 8 of her judgment. She reads out the relevant paragraphs from it and she applies the law in relation to it. So it is plain to me, and it has to be plain to me as a lawyer, that she has not got the law wrong. She has applied the right test. So she had to decide: has there been a change of circumstances?

In answering that question, the judge looked carefully at the various matters which were placed before her by Miss C and Mr M, all of which are in her judgment and which she wrote carefully down and recorded, and she decided that there had been in one respect, in one major respect, an important respect, a change of circumstances. This was that Miss C had embraced the idea of psychotherapy and had had a number of sessions with a particular psychologist, Dr O.

The judge said in terms in paragraph 12 of her judgment that this was:

“In the context of this case for [Miss C] following my placement order to embark upon, engage upon, sustain and further commit to psychotherapeutic sessions is a tremendous step forward for her personally and I have nothing but praise for her courage in so doing.”

So the judge came to the conclusion that that was a change of circumstances within section 47(5) which opened the door to the exercise of discretion. So to that extent she found very much, if I may put it in this way, in Miss C’s favour. So Miss C got over the first hurdle.

The second hurdle was the welfare of C, and in relation to that the judge weighed and had to weigh a number of different factors. The first was of course the progress which the mother Miss C had made and, as I say, she thought that was a tremendous step forward: indeed today that has been further emphasised to me by two letters from the consultant psychiatrist who had previously treated Miss C, effectively discharging her from secondary mental health services: one letter is addressed to her, one letter is addressed to the GP. They are both dated 17 July so they could not have been before the judge, but the letter to the GP is very positive about Miss C and indeed today she has told me that she has changed, in her words, “a hell of a lot”, and she has kept down a job. She has not changed in some aspects of her personality because she still describes herself as being a fairly lively person, but she says she has changed dramatically in relation to her recognition of the past and her ability to care for C and no-one, least of all the judge, doubted the love which both Miss C and Mr M have for their daughter, even though of course they have not seen her effectively since very shortly after she was born.

So the judge having decided the door to discretion was open, she then had to balance in the equation the various factors; and from Dr O’s report, which was before her, she took one particular phrase: “there is still a very long way to go”. She commented that, in her view of this report, the psychotherapeutic intervention, important as it was and “tremendous step” that it was, was only in its early stages. Dr O, she thought, did not, nor could he, come up with a prognosis for what she would describe as “success”. And she added: “It’s only [Miss C] who considers herself sufficiently ‘under control’ to parent in August of 2008” (which was the anticipated time for the psychotherapeutic sessions to reach their culmination, although unfortunately apparently it appears that Dr O was on some form of leave -- sick leave or holiday I am not sure which -- but which means that the sessions have been suspended). And the judge added:

“His report, with the greatest of respect, does not say [that she was ‘under control’] and in the context of this case I view the assertion that she will be up, ready and completely competent psychologically speaking to parent in August 2008 as being, quite frankly, unrealistic.”

The judge then looked at the other factors she had discussed earlier in the judgment and thought that they were unchanged. She thought Mr M was still angry and was still very critical of the local authority and unlikely to co-operate with the local authority, Then, finally, she turned to C herself and said C was nearly two (she is of course now two); D had never lived with her parents; her primary attachments had been with foster carers; and that in those circumstances, however desperate the mother may be to care for her, and however she may feel (that is, how the mother may feel) that the bond with her daughter has not been broken and never will be broken; and however heartbreaking the situation was for Miss C, the position in relation to the child was that the bond would be with, initially, the foster parents and now, in the year that she has been there, with the adopters. And since C was rising two, delay was not in her interests. Why, the judge asked, should C wait for what was still, sadly, an uncertain possibility, namely that Miss C would be in a position in the future to care for her?

The judge reached the conclusion that to deny C permanence -- which was what the original care plan proposed, and the Court of Appeal had confirmed -- without a positive psychological outcome within time limits appropriate and acceptable to the young child was contrary to her interests.

Finally, as she had to, she balanced the respective rights to respect for family life held by Miss C and Mr M on the one hand and by the child on the other, and came to the view that C’s right to respect for family life prevailed. So, balancing all those factors together, she came to the conclusion that she had to refuse permission to apply to defend the adoption proceedings.

Miss C this morning and Mr M have both put in statements, which of course I have read, and Miss C and Mr M have both addressed me in court this morning. I feel desperately sorry about this case and I quite understand Miss C when she says: “If you are against me, I am going to go to Europe because Europe is the only place that will understand the question of human rights.” I understand all of that but I have to explain to her, as I explained earlier, that my function is very limited. The judge did not get the law wrong. She had to balance a series of factors and she came to a conclusion which was plainly open to her. In other words, she was entitled to reach it.

If I had been sitting where she was who knows whether or not I would have reached the same decision. I may have done. I do not know. But that is not the question. The question I have to ask myself is: is it arguable that the judge has exercised her discretion in such a way that this court could properly interfere with it? I have come to the clear conclusion that she has not exercised her discretion improperly and that, were I to adjourn this case to be heard by the full court, it would simply be adding to the delay and increasing the heartache and so, with regret but nonetheless quite clearly, I have come to the view that this application must be refused.

I will however make a copy of my remarks in this judgment available at public expense to Miss C and Mr M so that they may consider them and if, as is their right, they take the matter to Europe, no doubt the European Court will consider them as well.