H (Children), Re

This appeal has filled me with some despondency. It is important that the parties know where they stand, and so I will give this judgment now and not reserve it. It is a case involving children, so the usual reporting restrictions should, I am afraid, apply.

The case concerns two children; a boy, C, who was born on 12 February 2003, and his sister, E, born on 25 December 2004. They have a half brother, J, who by some extraordinary quirk of relationship is also their uncle, because mother was married to J's father at some stage in her life, had J, separated from his father and then set up a relationship with J's brother, his son, so this is a complicated family relationship.

It has been utterly blighted, whether to the point of destruction is as yet uncertain, but blighted by all means, through the total inadequacies of both parents to control their abuse of drugs and of drink, and that has had a tragic effect on the two children whom they love and who love them and who, under the order of HHJ Elly made in the Reading County Court on 9 November, had been placed in the care of the local authority and had been placed for adoption. The appeal is brought with the permission of Black LJ and I am sorry it has taken so much time to get here.

The story unfolds in this way. Both parents, as I have said, are addicted to drugs, heroin, cocaine, to mention but two, as if two are not enough. They have inevitably come to the attention of the social services over the years of the lives of these children. They have, certainly recently and I expect in the past, come to the attention of the local constabulary.

The wonder of it is that their children have survived as impressively as they appear to have done, notwithstanding the manifest failings of these parents, the father having the realism to acknowledge that he has been (I quote him) "a crap father". Mother does not seem to make the same admission. Notwithstanding that lamentable failure, the children have flourished well enough in their care, apparently making good enough progress at school, and are, as was put by one of the counsel today, to all intents and purposes normal children; and huge tribute and congratulations to them for having overcome the deficiencies of their inadequate parents.

Although the local authority kept their tabs on this family, it needed another tragedy really to invoke the present proceedings. A third child was born on 26 June 2009 and died for reasons that remain unexplained, so no question of blaming the parents for this tragedy; it was nothing other than the tragic death of a baby, but it has had serious consequences. In the aftermath of it the parents found life difficult and, with the blessing of the local authority, asked the maternal grandparents voluntarily to accommodate the children, which they agreed to do on 3 July 2009. That voluntary arrangement was overtaken by the care proceedings which were brought by the local authority on 12 August 2009, since when a number of interim care orders have been made.

The case was fixed for a hearing in May of 2010 at a time when the parents faced their difficulties and when the local authority responsibly looked to the wider family for alternative carers. At that stage uncle and aunt (the maternal aunt, the mother's sister) and her husband put themselves forward as able to look after the children, if not permanently certainly as respite carers for the grandparents. But that was an act of family generosity; realism soon clicked in and the aunt recognised that her responsibilities to her own children of a like age and the financial constraints that were upon them rendered it impossible for them to conduct that role as carers properly, and so they withdrew.

In the result, with the grandparents acknowledging -- to the astonishment of at least one member of this court -- that grandfather, at the ripe old age of 70, was too old to look after these children, they withdrew their offer of permanent help, and the local authority had no option but to review their plans; and their plans, confirmed in October of 2010, were that adoption would be in the best interests of these children and an application was accordingly made for a placement order.

By this stage the parents had descended further into the mire. The father had faced criminal charges and had been sentenced to a term of two years’ imprisonment on 5 August 2010. The mother was convicted of other offences on 3 September 2010 and she was sent to prison for nine months. The date for the final hearing was fixed for early in November. It is important to understand the development of this case to see exactly how the battle lines were drawn for this hearing. Both parents were in prison, their dates of release being uncertain, hoping that they might be released on some form of early parole. The mother in particular was asking for a further adjournment of this care proceeding in order that her ability to cope could be properly assessed. She needed to demonstrate that firstly she had separated from the father and, secondly and more importantly, that she had ceased to partake of narcotic drugs and had controlled her excessive drinking. No doubt the father supported her. So her case was adjourned in order to assess her drug-taking and assess her ability to look after the children alone. The local authority's case was to place the children for adoption. The guardian supported the local authority and issues therefore confronting the judge were, and probably were mainly, the consideration of the mother's case for the adjournment.

He gave a long judgment, and it is probably necessary, in order to understand the way the case unfolded, to go through that judgment to understand the thinking and reasoning that led to his eventual conclusion which was, as I have indicated, that a full care order should be made and that the children be placed for adoption.

The judge therefore, having recited some of the history, recorded that he had heard oral evidence from a Mrs Steinhart, a consultant clinical psychologist who had worked extensively in families in this sort of situation, though the extent to which she is an expert in child psychology has been somewhat challenged before us today. Certainly she had been invited in the joint report commissioned of her to assess the attachment of the children to their parents. The court also heard from a Dr Wilkins, an adult consultant psychiatrist with particular expertise in drug and alcohol abuse; a Mr Campbell, at one of the drug-testing laboratories; and then the social worker, Mr Bryant, the guardian and the parents. It was a hearing which lasted five days. He addressed the law in paragraphs 20 and 21. He acknowledged the human rights aspect of it; his approach was that children should be brought up by their parents or, if not the parents, by the wider family as to contact. He said this is of course for the benefit of the child rather than the parents but should be promoted even after adoption if that is in the interests of the child.

He addressed the first question, was the threshold of Section 31 of the Children Act 1989 crossed, and, as is apparent from my early recitation of the parents' manifest failings, that admitted of an easy answer, which was of course it was: they had neglected their children. But he recorded in paragraph 22, as elsewhere, how well E and C were developing. He dealt with that development in paragraph 25, observing that the local authority, Mrs Steinhart and the guardian had accepted that there were times when the parents' parenting had been good enough and accorded that the children show attachment to their parents and their maternal grandparents, and this confirms that the parents are capable of acceptable parenting in that the grandparents had maintained their interests over the 15 or 16 months that the children had been living with them up to that time. At the time of the hearing they were still with the grandparents.

He dealt with Mrs Steinhart and recorded in paragraph 28 how she had observed contact and felt that the parents had managed that contact effectively. She felt mother had a good insight into the children's needs and a good positive relationship with both. Father too had a good insight into the needs of the children. But in her report she had recognised that the children could only be returned to the parents if they were to engage fully in a detox programme and both implement and sustain change over a significant period. She doubted whether they had taken on board their personal responsibility for the neglect their children had experienced. She said:

I interpolate they were of course vehemently opposed to adoption. Mrs Steinhart agreed that work needed to be done to prepare the children for adoption and to assess their contact needs with their parents and with the wider family, and that could only be if adoption was accepted by the family as being in their interest. She acknowledged that children will, if they are placed in a bridging placement and then adopted, go through a period of bereavement. It is not clear to Mrs Steinhart whether their primary attachment is any longer to their parents or whether it may be to their grandparents, and she does also say that it is important not to delay the adoption process.

I need not trouble with Dr Wilkins and his comments on the failings of the parents to alter their drug-taking. I turn to what Mr Bryant, the social worker, said to the judge. He accepted that there remains a need to review contact post-adoption, particularly with the grandparents, and that is something which can be done when the children move to a bridging placement. Although this might change the present plan, at the moment his view was that letterbox contact was the appropriate level of contact for the children. The plan had been, and was, that there should be a move to adoption and that the contact should be limited to letterbox contact only. He believed that placement could take place in six months, and he said that whilst he was prepared to look for adopters who were agreeable to contact he felt that first the needs of the children need to be assessed once they have moved from living within their family.

I read paragraphs 46 and 47:

He also expressed the view that adoption gave the children greater security. Based in foster care the problem of the family and how they could deal with contact, what they can actually be prepared to accept would mean that he needed to look at contact again in the event of their acceptance of the decision of the court.

The judge dealt with the guardian's recommendation in paragraph 56 onwards of his judgment. Her recommendation apparently remained as set out in the report, and in her report she was recommending that the children be placed for adoption. She dealt with it at E9 in our bundle. She recorded in paragraph 33 that:

She expressed the view that long-term fostering was not a preferable option to adoption as it did not offer the long-term security adoption would bring for children of that age. It meant effectively that parenting was to be exercised by the local authority, and she felt the children would be stigmatised by being subject to a care order for more than half of their lives.

She acknowledged that at their ages they were at the upper end for successful adoption. She considered the checklist factors, including the relationship they had with their relatives, and she said this:

Then she said this:

It dealt only with the relationship to the other members of the family and the guardian acknowledged that the report did not deal expressly with the parents' position but much the same seems to have applied to them.

As to finding parents who would accept contact, her experience was that most adopters looking for children of this age group accept there may well be contact with their birth family at some stage because clearly they will have memories of their birth family. However, in looking for suitable adopters the most important criteria is to find adopters who have empathy with the children's position rather than necessarily looking for adopters willing to commit themselves to contact.

So far as the value of contact to the children is concerned, that could only be assessed once they have moved from their grandparents, and she acknowledged that there be a need for there to be discussions with them to obtain their wishes and feelings after that stage.

The mother's case, as I have indicated, was that her case should be assessed and work should be done both on her case and to obtain the children's wishes and feelings about adoption, long-term fostering and contact before a placement order could be made.

The judge then went on to recite the submissions advanced by the local authority, saying in paragraph 67 that:

He began to make his conclusions in paragraph 73. He said that he had considered the welfare checklist and he adopted the analysis set out in the guardian's reports:

He said in paragraph 74:

So his conclusion beginning at 77 was that:

Thus he concluded with regret at paragraph 80:

He recognised that adoption had risks; he recognised that the removal of the children was going to be traumatic for them; and he recognised and very much regretted that it was necessary:

Then he turned to contact. He said:

His conclusion was at 81:

As for contact, he accepted the assurances from the local authority as to their plans for continuing contact until the children were placed with adoptive parents. He did not make any order under Section 27; he proposed to reserve the case to himself so that he could in that way keep an eye on whether the local authority had been looking at the contact question.

The appeal is urged by Ms Blazley QC, who now appears, not having appeared in the court below. In essence the difficulty in the case was this. Having discounted the mother as fit for assuming care of the children (against which finding, I should add, there is no appeal), the issue before him had become narrowly: am I in a position to make a final care order? Am I able to assess with sufficient certainty that this is an appropriate case for placement for adoption as opposed to a care order with a plan for long term fostering? To some extent those questions were linked with the other issue that was unresolved: what contact should there be between these children, their parents, their grandparents, their half brother?

On the issue of adoption or long-term security, the judge appears to have accepted the recommendation of the guardian that adoption offered a greater prospect of long-term security and that it avoided the stigma of care and the need for constant intervention by the local authority exercising parental responsibility. The local authority put the case more in terms of the advantage of long-term security in an adoptive placement. Ms Blazley submits that those are generalised factors for which there was evidence only of their professional opinion, an opinion which cannot as such be challenged; but she submits that the flaw in that approach is that it begs the question of whether there was sufficient evidence before the judge to make the crucial judgment as to whether these children would in fact attach to adoptive parents or whether their attachment to the family -- be it the parents or the grandparents or the family as a whole -- is not so strong as to make them resentful of an adoption and, as such, to that security. She submits that the judge did not have the necessary evidence to make that crucial decision and she relies on observations of Black LJ in Re G (Care Orders) [2010] EWCA Civ 1271 where, at paragraph 47 of her judgment, Black LJ observed that:

For the local authority Mr Miller stands by the care plan which was, as I have indicated, for letterbox contact, with an offer to keep the matter under review and keep an open mind about contact in an open adoption. When pressed by this court he was constrained to acknowledge that in the circumstances which prevail, where the children are of an age where it is becoming difficult to place them, the local authority's approach is likely to be that adopters would be identified after the necessary advertisement and exploring the pool of adopters; they would be identified without necessarily giving them information about contact and, having found a suitable match, then enquire whether the adopters would be prepared to accept face-to-face contact; and the guardian, through the submissions of Ms Morton, took essentially the same position, that adoption was more important than contact; it should be adoption first and contact if possible.

Mr Miller submits that this court should not interfere with the exercise of the judge's discretion; he submits that we should not tinker with a care plan; it is not for this court to engage in an exercise of that kind.

There are obvious dangers in using interim care orders as a means of supervising the local authority's performance of its duties. That is impermissible. That is to trespass on territory which the Children Act has transferred from the court to the local authority. But it seems to me one must distinguish between giving the local authority free rein to implement their care plan and approving that care plan. If welfare is truly to be treated as the paramount consideration before a care order can be made, then the court must not finally dispose of the matter when the facts are not as clearly known as can reasonably be expected. The essential question is whether the court has a sufficiently clear picture of the way forward, that the court contest the inherent uncertainties that lie in the path down which the child is to be taken. The child's well-being demands that the court be satisfied by the local authority's proposals, and demanding as much certainty as is reasonably possible of attainment is no more than fulfilling the court's duty. There is inevitably a fine line to be drawn between requiring that degree of satisfaction and an over-zealous investigation and supervision of the local authority plan. Each case will inevitably very much depend on its own facts and circumstances. It is primarily for the trial judge to decide when enough is enough; that lies at the heart of the discretion he must exercise. But the question here was and is: should these children be placed for adoption, which severs the ties with the natural family, or should they be placed in long term fostering under the auspices of the care order? The decision to place them for adoption cannot be made without some assessment of the prospects of that adoption succeeding. Its success depends upon two elements. It depends in part upon the ability of the children to prosper in an adoptive placement, to accept themselves that they have new parents, a new family and that they have lost their old parents and their old family. It requires a psychological adjustment on their part and the older they are the more difficult that becomes. It requires for success, secondly, an acceptance by the parents of a placement for adoption, especially if there is to be any ongoing contact of any sort. It is inimical to the central theme of adoption, namely security, that the parents have sufficient knowledge of the adoption to undermine that placement.

Here it seems to me the judge was sadly left with too many questions still unresolved. How were the children going to react to new adopters, to the loss of contact? He did not have the information to answer that question. He recognised, as the local authority have to recognise, that it was a question for the future. It was a question that depended firstly upon how they reacted to the removal from their grandparents. That was why the matter needed to be kept under review and needed to be assessed as matters progressed in the changes in their lives, and I have come to the sad conclusion that the judge simply did not have the material upon which that fundamental decision of importance could be taken.

I am not even sure to what extent paragraph 81 of his judgment reflected the alternative cases. He approved the care plan; he accepted that the plan should be for letterbox contact (ie no direct contact) but he agreed with the guardian that something more may be possible and desirable. So was he really saying, “I think this is a case for adoption, and if we can tack something on of benefit by way of contact, so well and good; if we cannot, then adoption without contact is the best way forward”; and there is no sufficient reasoning of the process by which he arrived at those essential conclusions.

So with heavy heart, because time ticks to the disadvantage of children in care, I conclude that the judge was in error. The appropriate course for him to have taken was to acknowledge that, having dismissed the mother as a potential carer, he was left with the inevitability, given the grandparents' inability to continue long-term care, to move the children. But having moved them from the grandparents to, if necessary, a bridging placement or a short-term foster placement, whichever way one looks at it, that would be the time in which short assessments could be made to enable him to come to that essential conclusion: adoption and, if need be, no contact; or is it more important in the interests of these children that contact be preserved and therefore adoption be sacrificed? That was the essential question he had to answer, and the effect of the children, once they had moved from their grandparents, would have enabled him to conduct that inquiry without it becoming a state trial of huge proportions. It ought to be contained within a narrow limit.

So in my judgment I would allow this appeal, I would discharge the care order and replace it with an interim care order; I would transfer the matter to the High Court, the Principal Registry, not so much as an adverse comment to HHJ Elly, who handled this case with great sympathy, and it is not a reflection on him at all; it is partly motivated by a desire to get the case on and heard as soon as possible. I have caused inquiries to be made of the Clerk of the Rules and this case could be allocated two days in October or November, if necessary to be heard, as I would agree, by a Section 9 accountable judge here in London, and so the parties must seek an early date from the Clerk of the Rules. In order to speed that process and to allow two days to be gainfully employed, I would direct that there be a joint report from a single expert, whether a child psychiatrist or, equally as good if not better, an independent social worker to assist the court on the essential question: is it to be adoption if necessary without contact; is it to be adoption with some contact; or is it to be adoption in a foster placement?

Where do the best interests of these children lie, in the security of adoption or in the maintenance of contact with their family? That is the essential question which needs to be addressed, and I hope the short report from such an expert, to be obtained within the three months or three-and-a-half months between now and when the case can be listed early in Michaelmas term, would enable this matter to be resolved in the two days that may be needed to be set aside for that hearing. So I would allow the appeal accordingly.

I agree.

I also agree. I add only a few words because we are differing from the judge. I would like to pay tribute to a careful and insightful judgment. What has become increasingly clear to me, as today's hearing has proceeded, is the extent to which we have been concentrating on a very small part of a very much larger canvas that was presented to the judge. He was confronted by a parents’ case which urged him by every means possible to preserve the unrealistic possibility of the children returning to their care and was compounded by a series of hopeless applications for adjournment directed to that end.

I am however persuaded, like my Lord, that the result was that the hearing did not really have the opportunity to focus sufficiently on the issue which he has identified. That issue was how to balance two different needs of these children. The first is their need for the security and the sense of true belonging and the freedom from continued social worker involvement, which would come from adoption in preference to long term fostering. The second is their need for continued contact, and quite possibly direct contact, with their parents, their maternal grandparents and their half brother, J. The balance between those needs has to be confronted, of course, taking into account the extent to which the family is able to support whatever placement outside the family is the right solution.

For my part, I would not criticise the judge at all for accepting in general terms the force of the first of those needs, that is to say the advantages of adoption over long-term fostering if other things are equal.

What has become clear here is that whilst the local authority gave clearly bona fide and to an extent helpfully a generalised assurance that it would keep contact under review, its approach to that balance is this. First find a placement, and only then, if it is a) desirable and b) possible given the stance of the adopters, consider what can be achieved by way of contact. It is apparent now, though it may not have been below, that it is not the local authority's intention to seek an adoptive placement on the basis that prospective adopters are told that there is a real possibility of a need for continuing direct contact.

In the end, like my Lord, and for the reasons which he has so clearly explained, I am simply not persuaded that the judge had the material to say whether or not that approach was the right approach in this case, nor is it entirely clear whether that issue was ever directly confronted as such at the hearing before him. It had to be confronted; it goes to the root of whether adoption is the right solution for these children, now nearly eight-and-a-half and comfortably six-and-a-half. They know and are attached to their parents; they lived with their maternal grandparents for a little over two years and are clearly attached to them as well.

The question whether adoption is the right solution is, and has to be, one for the court; it cannot simply be left as an aspect of the working out of a care order to the local authority.

That said, I concur in allowing this appeal with the greatest possible regret from the point of view of the children, because the passage of time makes the achievement of a correct solution ever more difficult for them. It is perfectly clear there is simply no question of them returning to their parents and there are, sadly, no family carers available. They need a final decision on what kind of long-term family they will live with in future.

For my part, I am not persuaded that this needs lengthy expert or other evidence. The issues are in the end, as my Lord has formulated them, comparatively stark: should there be 1) adoption on the terms proposed by the local authority with contact to follow if possible? Should there, alternatively, be 2) no adoption because it is impossible on the grounds that the need for contact is such that it will not be achievable? Or perhaps 3) should there be a placement for adoption only on the basis that prospective adopters are willing to contemplate the maintenance of significant (that is to say, including direct) contact?

For my part, I would have thought that that issue could be addressed comfortably within two days on the existing evidence with the short single additional report proposed by my Lord.

I entirely concur in the order in the form that he proposes.