V (Children), Re

This appeal concerns two girls. C was born in March 2004 and is 9 years old. V was born in July 2008 and is nearly 5 years old. Its focus is the orders made by HHJ Baker QC following a hearing which concluded with a judgment which was handed down on 14 December 2012. The local authority’s plan for the girls had been adoption and they had accordingly sought care orders on that basis and placement orders. The judge explained in the 14 December judgment that he had decided that it was necessary for the girls to be in the care of the local authority (LA) but that it was in their best interests to remain in long term foster care and to maintain contact with their parents rather than to be adopted. On 21 February 2013, he therefore made a care order in relation to each child but he required the LA to file revised care plans on the basis of long term foster care and he refused the applications for placement orders.

The LA have issued three Appellant’s notices appealing against the judge’s decisions of 14 December 2012, 9 January 2013 and 21 February 2013. All these appeals are before us but it is not necessary for the purposes of this judgment to do more than to state in broad terms that they seek to challenge the judge’s refusal to approve the LA’s care plan for adoption and to grant placement orders in relation to the children. I will refer to the appeals collectively as “the appeal” from now on.

The appeal came on for hearing a week after the Supreme Court had delivered their judgments in In the matter of Re B (a child) [2013] UKSC 33, upon which we heard some submissions. In contrast to Re B, this appeal does not involve any debate about whether the section 31(2) threshold is satisfied or whether care orders should have been made because the parents realistically do not seek to suggest that care orders were inappropriate. The issue before us is what the care plan for the children should be and whether the judge was wrong to refuse to make placement orders in relation to them. The Supreme Court in Re B was, of course, considering when a care plan for adoption is appropriate so the present case takes us into the same territory. However, we have to view the landscape from a different angle. First, the acceptance that the parents and the children will be separated for a period which appears likely to extend to the rest of their childhood shifts the debate from whether physical separation is necessary to whether a severance of the parent/child relationship in law, and a termination of direct contact, is necessary. Secondly, the parents in Re B argued that the decision that their child should be adopted involved an unjustifiably extreme invasion into the family’s article 8 rights. Here, the LA argue that the judge failed to meet the best interests of the children because he did not go far enough.

It was common ground between the parties that our role in considering the appeal is to fulfil the traditional reviewing function of the Court of Appeal and that we should be looking to see whether the judge’s orders were wrong. There was no disagreement either over the proposition advanced by Mr Hayden QC for the LA that at §46 of Re B Lord Wilson provides some valuable assistance as to how the appellate court should approach this task when he says:

“To be driven to jettison the principles in G v G in this context is not to say that the factors which often vitiate the exercise of a discretion – namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle – becomes irrelevant. On the contrary they may well generate a conclusion that the determination was wrong and should be set aside and either that it should be reversed or that the application should be remitted for consideration afresh.”

I think it is also uncontroversial that in considering whether the judge was wrong, an appeal court must “think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence” (Lord Neuberger in Re B §94, subject perhaps to his comments at the end of §95). Lord Wilson (§§41-43) spoke of the need for the appellate court to factor into its review of the trial judge’s determination “the advantages which the judge had over it in appraising the case”, called attention once more to Lord Hoffmann’s remarks in Piglowska v Piglowski [1999] 1 WLR 1360 and said that they “apply all the more strongly to an appeal against a decision about the future of a child”, speaking of the “difficulty of mounting a successful appeal against a judge’s decision about the future arrangements for a child”.

Given the lack of debate over these matters, I will attempt not to complicate things by further analysis of Re B in so far as it concerns the role of the appellate court in relation to determinations made in care cases and I will try to restrict myself to such consideration of the balance of Re B as is necessary to decide this appeal.

What consequence, if any, does it have for our approach that the present case is a sort of mirror image of Re B in the sense that the appellant’s argument is that the judge’s interference with existing family life was too modest rather than unjustifiably extreme? It means that my analysis of the proportionality issues will not follow precisely the form of the analysis in Re B but article 8 is obviously not irrelevant. It has played its part in shaping the approach of our law to those orders which interfere with the relationship between parents and children. An important function of Re B was to underline the high threshold that has to be crossed before the court should make an adoption order against the wishes of a child’s parents, such an order being “a last resort”, made “where nothing else will do”, only when the interests of the child render it “necessary”. A placement order cannot generally be made without the consent of the child’s parents unless “the welfare of the child requires the consent to be dispensed with” (section 52(1)(b) Adoption and Children Act 2002). I think the Supreme Court viewed the making of a care order with a care plan of adoption in the same way (see, for example, §§34, 76 and 142). Accordingly, in considering whether the judge was wrong in refusing to endorse the LA’s care plan of adoption and to make placement orders, we must be alert to the fact that he could not have made those orders unless it was established that they were necessary.

Mr Hayden asserted that the children’s right to a stable and secure home and an adoptive family is itself an article 8 right. He indicated that he could not find any authority for the proposition and he did not seek to take us to any of the existing authorities on article 8 to suggest that they could be developed along these lines. He did make the submission, nonetheless, that by not being sufficiently interventionist, the judge had failed to protect the children’s article 8 rights, although I think it is fair to say that this argument was not a mainstay of his case which focussed much more upon the realities of these particular children’s lives and what was required in their best interests. So will this judgment.

I have given close consideration to the evidence that was before the judge and to the facts as they appear from his judgment. The LA did not take us to the underlying documentation as the judgment was so thorough and was not challenged in this respect, their challenge being to what the judge made of the facts in reaching his conclusions. The judgment needs to be read together with the threshold document which was endorsed by the judge, subject only to a few minor amendments, and contains a little more detail as to some aspects of the background (with which on the whole I will not burden this judgment). We were, of course, scrutinising the evidence in order to reach a view as to whether Judge Baker was wrong in the orders he made. However, I was conscious that we may also need to have regard to it for another purpose. No one suggested that, in the event that we decided that Judge Baker was wrong and the appeal should be allowed, we should remit the case for rehearing. On the contrary, it appeared to be common ground that in those circumstances we would substitute placement orders for the orders that the judge made. It follows, I think, that in that event we would have to form our own view as to the proportionality of the adoption route because it would be our order that interfered with the parents’ and children’s family life.

Lady Hale in Re B, although in the minority in relation to the proper role of the appellate court in reviewing whether a care order violates article 8, helps us as to the basis upon which we would form our own view. We do not hear evidence ourselves; if evidence is required, the proper course will normally be to remit the case to the first instance court for determination. Accordingly, if we are making the decision ourselves, we must, as Lady Hale said at §205, “give due weight to the enormous benefit which [the trial judge] has had of reading and hearing all the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days and weeks”.

Other cases may present other conundrums but in this case it seems to me it is possible not to over-complicate things in relation to what we have to do. On these facts, the possibilities are that a) Judge Baker QC was wrong not to make care orders with a care plan for adoption and placement orders because the children’s welfare required adoption, in which case the appeal must be allowed and we must substitute those orders for his orders so as to enable the adoption which is necessary or b) he was not wrong to contemplate long term fostering, in which case the appeal must be dismissed. Putting it another way, the LA submitted that there was only one right answer here and that was adoption.

Neither parent has had an easy life. They were both caught up in the civil war in their native Sri Lanka. The mother (M) lost her father when she was quite young. She suffered abuse at the hands of her mother and her mother’s partner. Both M and the father (F) came to this country in their twenties. They had been betrothed earlier but met for the first time here. They began to live together and married in 2004, shortly after C had been born.

F’s financial circumstances were poor from the start. He consumed increasing amounts of alcohol to the point that he became an alcoholic and was spending most of the family finances on his addiction. From very early on in the relationship, there were arguments between F and M, and F was violent to M. The parents separated for a short time in 2005 but then resumed cohabitation.

The judge found that during the first 3 years of her life, between 2004 and 2007, C had been “regularly exposed to the physical violence which F had been perpetrating upon M since June 2003” and had suffered significant harm to her emotional development as a result of what she witnessed. An example of this was the unpleasant incident in 2006 when F, having spent the evening drinking, returned home late, dragged M from her bed next to C’s cot and beat her to the extent that she needed hospital treatment. He was cautioned by the police for common assault.

In 2007, F carried out sexual assaults on four victims ranging from a 16 year old man to a 49 year old disabled woman. He was sentenced to an immediate term of 12 months imprisonment and made subject to notification requirements under section 80 Sexual Offences Act 2003 for a period of 10 years.

Whilst F was in prison from February to July 2007, M cared for C on her own. In June 2007, M caused criminal damage to a neighbour’s car and was found looking after C whilst drunk. The police removed C overnight on a police protection order.

On his release from prison, F had to remain away from home until an assessment was made of what sexual risk he posed, although he maintained contact with the family. He began to live with M again in January 2009. By now, V had been born. The cohabitation was short-lived and after a few months the parents separated again, the children remaining in M’s care.

F conceded that his consumption of alcohol had again become an issue between the parties and that there were physical fights between the parents in the presence of the children which continued until M and the children left the area in early 2010, after which F maintained contact with the children through visits to their new home. The judge concluded that by the time V was born in 2008, the violence was two-way with M being violent towards F as well as vice versa. He remarked upon the harm that witnessing these events caused to the children’s emotional development and the real risk that there had been of them suffering physical harm by becoming caught up in the violent scenes.

Concerns began to be expressed by a number of agencies about M’s mental health. In February 2011, the children were removed from her care after she contacted the police in an apparently distressed and manic state asking them to provide her with poison so she could kill herself and the children. The judge said that this incident was “clearly of a different order” and that the children were potentially in danger of being caused physical harm.

M does not appear to have been thought at the time to be suffering from any mental health disorder beyond anxiety and stress. She was expressing concerns about F’s lack of assistance with the care of the children and her uncertain immigration status. The children spent a short period in foster care on a voluntary basis so that the LA could carry out an assessment.

The observations of the parents’ contact with the children during the assessment were contrasting. The judge recorded (§14) that:

“M variously ignored C, failed to interact with the children and failed to place boundaries upon their behaviour. In contrast the children appeared to have a good attachment to F, although he too failed to place boundaries upon some aspects of V’s behaviour.”

C told the LA that M had beaten her with a stick when she was naughty and M admitted that she had done so once. The parents did not seem to appreciate the LA’s concerns. F declined to care for the children, despite being informed of the LA’s concerns about M’s ability to do so. In due course, they returned home to live with M.

In the 6 months following the children’s return home, there were mounting concerns for their welfare. C’s school attendance was unreliable. At home, living conditions were poor and the children lacked stimulation and were not allowed to play outside. M declined to engage with the LA or other agencies which would have assisted her. She made increasingly frequent unsubstantiated allegations to the police, for example that her water was being poisoned and that she had been forced into prostitution by her landlord. She exposed the children to inappropriate scenes of verbal abuse in the course of her dealings with others. The judge said of this period that M “appears to have placed her own needs above those of her children”. M told a contact worker later on that C had written on the wall that she wanted to die and the judge saw that as revealing a “stark picture” of C’s emotional state.

In September 2011, M’s GP diagnosed that she was suffering from depression but she declined medication for that. Looking back, the judge thought it likely she had been suffering from depressive symptoms from at least 2010.

From the threshold document, it can be seen that on 14 September 2011, M said to the social worker that she intended to take all her prescribed medication in the next 48 hours and requested that she be cremated and her remains sent to Sri Lanka. This conversation was overheard by the children.

On 15 September 2011, the children did not attend school and nursery. The LA attended at the home to find it locked. Eventually C let them in and they found M motionless on her bed with her eyes fixed and glazed, C upset and V inside a cupboard, in a dishevelled state, crying and shaking. The children were again removed into police protection. Thereafter the LA applied for care orders and interim care orders have been in place since 21 September 2011.

Many troubling features of the children’s home life are apparent from the roughly chronological account I have just given. In addition the judge was satisfied that throughout their lives, M had “caused some level of physical violence to both of [them] by way of excessive chastisement” to an extent which amounted to “ill-treatment by M of these children”.

Summarising the concerns in relation to M, the judge alluded to the isolation of the children and said (§46) that in addition:

“there are the concerns in relation to M’s past threats of physical harm to the children, her displays of both verbal and sometimes physical aggression with F, her ill-treatment of the children by way of physical chastisement, her frankly bizarre interactions with various agencies and her often volatile and critical attitude to offered assistance by the Social Services.”

The judge found that the increasing extent of the Mother’s concerning behaviour and her lack of interaction with the children would have been evident to the Father and was in any event brought to his attention by the social services in early 2011. He determined (§33) that:

“F’s failure to accept any responsibility for the situation in which his children found themselves and his consequential failure to care for them, was not that which could be considered to be reasonable to expect a parent to provide for his children.”

and he was satisfied that:

“as matters progressed through to September of 2011, his neglect of his children’s welfare placed the children at considerable risk of significant harm by way of impairment of their physical health and was impairing their emotional, intellectual and social development.”

The judge recorded that F had conceded in evidence that since 2007 he had appreciated that M’s mental health was declining so that she was acting in an increasingly bizarre manner with increasingly erratic outbursts of anger towards other people yet he failed to take any steps to ensure the safety or welfare of the children either himself or through others. It was also clear that he had been aware of M’s physical chastisement of C but failed to take any steps to protect her from it.

The children, who have remained together, have had two sets of foster parents so far. They have settled easily. They have not questioned the need for their removal from M’s care or expressed the wish to go home. Indeed, on occasions they, especially C, have expressed their concerns about being returned. C is less stressed and anxious than she was in M’s care and is now thriving at school both intellectually and socially. V is very happy at school and talks readily about her work there and her friends. It is apparent that C has some understanding of M’s mental health difficulties and recognises that she cannot look after the children. It seems from a letter that C wrote to the court that she had considered whether she might be looked after by F on his own but had rejected that possibility because M would inevitably appear on the scene. The judge recorded that in a recent discussion with the guardian, C had said that she did not wish to be cared for by F because as a result of his failure to protect her and V in the past, she would be unable to trust him to care for them safely in future. The judge recorded (§38):

“it is apparent from [C’s] letter that her real and present wish is to be raised in a safe, loving and secure family environment which would be afforded by two parents living together; a situation which she realistically appreciates that neither of her parents can provide for her and V.”

The question of the contact that there has been between the parents and the children is central to this appeal and I need to look at the evidence about it in some detail.

Both parents have had regular supervised contact although M’s has been suspended at times due to concerns about the effect of her behaviour on the children.

The judge said (§18):

“Overall F has appeared to be far more engaged with the children in these sessions, whilst M has on many occasions appeared to be less inclined to do so. Not infrequently M has given priority to V over C. Moreover throughout this period there have been times when M has expressed views and displayed behaviour which are of concern to a number of agencies.”

The judge worked through the history of contact carefully describing the attributes of it. M’s contact had caused problems, F’s had not.

At §20 of his judgment, the judge described four occasions during contact in the autumn of 2011 when M behaved in a way which caused the children to become upset or frightened. They included M seeking to remove the children from the contact session and expressing her anger at F. On another contact session during that period M told C she would soon be returning to her care; C said after the session that when they last returned to M’s care nothing had changed and she did not want that to happen again.

C expressed her concern about seeing M in contact sessions to a variety of people at about this time. In January 2012, V said that whereas she wanted to see F, she did not want to see M, and C said she did not want to see M three times a week and would be happier seeing her only once a week.

In §§22 and 23, the judge set out 12 further contact sessions spanning the period March 2012 to late October 2012 during which M behaved in a way which actually upset the children or risked doing so. For example, on one occasion she largely ignored them and focussed instead on shouting at F, and another time she spent much of the session with her eyes closed ignoring the children. She also upset C by asking her where she wanted to live, asked V who she likes out of M and F, asked the contact worker whether V had a learning disability, told the children they were no longer going to have any contact with F, cried and said she needed the children and according to what C said later, told her to tell the LA that she wanted to live with her. On one contact session, she sought (verbally and physically) to prevent C leaving. The judge summarised the position thus (§24):

“I have studied the contact notes contained within the Trial Bundle and although it is apparent that there have been many occasions when M’s behaviour during contact sessions has been inappropriate, there have been a significant number of others when it is clear that the children have appreciated their contact with her and benefitted from it. On these occasions she is able to play with them and interact both verbally and physically with them in an appropriate manner. Albeit on some of them M has either tended to baby the children ….. or been critical of them …..”

In so far as F’s contact was concerned, he noted the close bond seen between F and the children (§50) and he said (§24):

“….during the vast majority of the contact sessions with F, he has interacted well with them and they appear to have fully appreciated their time with him. He appears to be genuinely interested in their lives outside the contact sessions, asking appropriate questions of the children, to which they eagerly respond. He plays games with them either of their own choosing, or appropriately suggests games which they can play together. Most of these sessions ending with the children informing F that they love him. This is not to say that there have not been some concerns, such as his apparent difficulty in placing boundaries on the children’s behaviour (e.g [dates of nine sessions between November 2011 and July 2012 quoted]). However, overall it is clear that his contact with the children during this period has been of positive value to them. The current contact regime is that both each [sic] parent has twice weekly contact with the children.”

There is no criticism of the judge’s careful direction to himself in relation to either the threshold or welfare stages of his determination or, indeed, in relation to any of his statements of the law. He reminded himself that both the parents and the children’s article 8 rights were engaged and proceeded on the basis that a Part IV Children Act order should only be made if it is both necessary and proportionate to the circumstances of the case, citing the well-known passage from Lady Justice Hale’s judgment in Re C and B (care order: future harm) [2001] 1 FLR 611 and also from Lord Justice Thorpe’s judgment in Re B (care: interference with family life) [2003] 2 FLR 813 where Thorpe LJ said that a care order should not be made unless the court is satisfied that it is necessary and proportionate and “that no less radical form of order would achieve the essential end of promoting the welfare of the children”.

The judge does not seem to have envisaged any improvement in future in M’s interaction with the children. He noted the “considerable and sufficient efforts” made by the LA to provide assistance and support to M in order to seek to reunite her with her children and M’s failure to take sufficient steps to respond to that assistance and support, largely rejecting the efforts. He said (§44):

“It is apparent from the history of this matter that over a significant period of time whilst the children were being cared for by M, she appears to have prioritised her own concerns over those relating to the welfare of her children. Leading [sic] to the isolation of these children both from socialising and being appropriately educated outside the home, and from any emotional warmth and stimulation from M. Unfortunately during the course of the assessment, M’s frequent lack of interaction with the children, particularly C, appears to have confirmed this situation as one that is likely to persist, rather than improve. Furthermore it is apparent that M shows little if any insight into the harm that this has already caused to the children and the further potential harm to them from its continuation in the future. The only parenting error which she conceded in the course of the assessment being [sic] to have allowed her children to be removed from her care.”

He recorded that M had a similar lack of insight into her mental health difficulties, not accepting that the problem really existed. He had not seen any cogent evidence that her mental health had improved and he had reached the conclusion that (§45):

“the prospects of M accepting and maintaining any safe level of medical treatment of her mental health are poor and are certainly insufficient to justify any delay in the making of any orders for the benefit of either of these children.”

He found that (§48):

“M would not presently nor in the foreseeable future be able to provide the consistency of safe and secure care which both of these children need both now and throughout the remainder of their childhoods. Moreover if returned to her care, it is likely that the children would, at the very least, once again become isolated both from social interaction and appropriate education outside the home and from emotional warmth and stimulation within it. In my judgment the nature and extent of the harm to which this would be likely to expose these children is such that, despite the normally undoubted benefits of being with one or both birth parents, their welfare at this stage and in the future dictates that neither of these children should be returned to the care of M.”

He considered the level of potential harm such that insufficient safeguards would be provided by a supervision order and that not returning the children to M was both necessary and proportionate.

Although the detail of F’s position was different from M’s, the judge accepted that he could not provide care for the children now either and that “the prospect of [him] being able to provide such care in the future is one that, in view of the need to provide for the long term care of the children without delay, cannot be justified as it would be contrary to their welfare” (§54). This view rested on the following conclusions, more fully set out in §§49 to 54 of the judgment:

It is worth noting that the threshold document which the judge endorsed contained this statement in relation to F:

“F was fully aware of M’s erratic and bizarre behaviour, and the abusive and unpredictable caregiving that the children were receiving. He chose to place his need for sanctuary away from such conflict and erratic behaviour above the need for him to protect his children. C and V have suffered prolonged feelings of fear, anxiety and stress as a result of F’s unwillingness to protect them. ”

As with M, the judge was satisfied that the level of potential harm involved in placing the children with F was such that a supervision order would be an insufficient safeguard and that not returning them to his care was necessary and proportionate.

It is clear from §65 of the judgment that the judge saw the children’s removal from home as long term.

The judge began his consideration of the application for placement orders at §55 of the judgment by recognising that as the parents opposed adoption, the orders could only be made if the welfare of the children required their consent to be dispensed with. He reminded himself of what was said in Re P (placement orders: parental consent) [2008] 2 FLR 625. Wall LJ there commented on the strength of the word “requires” and observed that a child’s circumstances may “require” statutory intervention, perhaps even indefinite or long term removal from home but not necessarily adoption. Wall LJ also held that there is not an “enhanced welfare test to be applied in cases of adoption” as opposed to “the simple welfare test” and that the difference between section 1 of the 1989 Act and section 1 of the 2002 Act is that the latter requires the judge to recognise the lifelong implications of an adoption order and to focus on the child’s welfare “throughout his life” and also contains a more extensive “welfare checklist” than in the 1989 Act. Judge Baker reproduced the appropriate extended welfare checklist from section 1(4) of the 2002 Act in his judgment.

In the earlier section of his judgment, the judge had identified a number of particular features which were of importance in determining what orders should be made in relation to the children. He was mindful that the views of the children were but one factor (§39) but he noted that C was an intelligent and empathetic girl who has some understanding of M’s mental health difficulties (§37) and said that it was apparent from C’s recent letter to the court “that her real and present wish is to be raised in a safe, loving and secure family environment which would be afforded by two parents living together; a situation which she realistically appreciates that neither of her parents can provide for her and V” (§38).

He concluded that, because of their history, these children had “an enhanced need to be cared for in a safe and secure environment”, observing (§40) that although all children have emotional needs, there was “a particular need for these to be met in the case of these two children, in view not only of the inadequacy of these needs having been met whilst they were in the care of their mother, but in particular as a result of their prolonged exposure to the verbal and physical violence which took place between their parents and the physical violence visited upon them by M”. He said that their environment needed to be “free of verbal and physical violence not only between the carers, but also towards each of the children” and one in which “socialisation is promoted and appropriate stimulation and boundaries are provided”. He also noted that it would be necessary to consider the children’s Sri Lankan and religious heritage.

Starting at §57, the judge evaluated the relevant factors for his placement decision, focussing particularly on the one hand on the relationship of the children with the parents and their membership of the V family, and on the other on their need to be cared for in a safe and secure environment which could not be provided by either parent.

His view was that the children had a close emotional bond with both parents and that the very positive elements in the children’s characters reflected well on the parents who had been able to foster these attributes and that that should be borne in mind when considering the value of continuing their relationship with their parents. He cited the guardian’s view that although C and M would benefit from some further therapeutic work concerning their relationship, C had very strong ties to her family.

He noted that at no stage had either child expressed a desire not to see F, who interacts well with the children at contact and whom they enjoy seeing. F shows them love and affection and expresses a genuine desire to take interest and to interact with them. As for M, there had been “a significant diminution” in their expressions of the desire not to see her at contact and both of them had appreciated their contact with her on a significant number of occasions up until “more recent times when M’s concerns about the impending court hearing may have influenced her behaviour and thus the children’s attitude”.

However the judge also recognised that C was reluctant to return to the care of her parents and wanted “to be raised in a safe, loving and secure family environment which would be afforded by two parents living together”. He considered what to make of C’s expressed desire to be adopted. He said he accepted she is an intelligent child and had “purported to express this desire in writing” but was “far from satisfied that at her present age, she fully comprehends the differing implications” of foster care versus adoption. He was concerned that the guardian and the LA, under the influence of their own views as to what would be beneficial for the children, may have provided too beguiling a description of adoption and may not have explained fully to C the safety and security which could be afforded by a long term foster placement. He noted that she had earlier expressed a desire to remain a “V” all her life (referring to her surname) and considered that “[a]ny suggestion that C would have fully understood that she and V would no longer be part of their birth family, flies in the face” of that earlier expressed desire.

The judge acknowledged “the undoubted benefits of adoption” but was not prepared to accept that safety and security could not also be provided by long term fostering. The LA had stressed the continuing involvement of the LA/Independent Reviewing Officer and the possibility of future applications by the parents to discharge the care orders and had argued that fostering may be less stable than adoption because of the financial arrangements supporting it which could also detract from the quality of care being provided. The judge was not persuaded by these arguments. He noted that the guardian acknowledged in evidence that a safe and secure environment can be provided by both forms of placement and that a care order would not be discharged without a fundamental alteration in the circumstances. He dismissed the idea that the LA might be minded to alter a long term foster placement for economic reasons when it was against the children’s interests as being contrary to their duties and he felt that the funding argument unfairly denigrated the commitment displayed by foster carers chosen by the LA after careful vetting.

Whilst recognising that a real advantage of adoption is that the adoptive parents are able to provide assistance and support beyond childhood, the judge felt that this was a less weighty consideration where the situation was not one in which the circumstances were so serious that it would be contrary to the child’s interests to resume contact with the parents even once they reach adulthood. He said (§62):

“Indeed where continued contact with the birth parents is considered to be in the interest of the child both during his childhood and beyond, then it is of less weight still and may indeed provide a contrary indication to adoption itself.”

The judge put into the equation that it was unlikely that an adoptive family from the same Tamil Sri Lankan heritage as these children would be found, although the LA were seeking prospective adopters who will be culturally sensitive, and that adoption would be likely to “entail a significant diminution of the children’s ties to their cultural heritage”.

He gave consideration to the parents’ uncertain immigration status. M has temporary leave to remain until 2013. F has been here for 14 years but does not have leave. I interpose in my consideration of the judge’s judgment to record that we were told during the appeal hearing that F sought asylum on arrival here but it was refused. Counsel were not able to illuminate us about his immigration position since then except to say that he has apparently recently had an appeal turned down by the First Tier Tribunal and there is a hearing of some kind scheduled in the Upper Tribunal at the end of July. It is not clear whether the present activity on this front results from a decision to deport him following his criminal offence or from something else. The judge worked on the basis that if the parents continued to have “meaningful contact” with the children (such as contact six times a year), there were reasonable prospects of them being granted leave to remain.

The judge’s conclusion was that the children’s welfare did not require adoption and that it would not be necessary or proportionate to make placement orders. It is clear that the cornerstone of this conclusion was the need that he perceived for contact with the parents to continue. He explained at §66 that the main factors in his decision were the “strength, longevity and value” of the relationship between them and their parents, particularly F, and their ages, particularly that of C who “has already therefore had ….contact with each of her parents for almost half of her childhood”. He considered that the value of the contact so far has been to “inculcate in these children an appropriate sense of self worth, together with a strong emotional bond between the children and their parents” and commented that it is a credit to both parents that they are “so well mannered, polite and adorable”. He thought there was a significant risk that if the children were deprived of contact at this stage of their development, they would suffer a real sense of loss which may well undermine their well being both now and in the future. He thought it likely that the children would wish to have a relationship with their parents when they are adults and continuing contact now would be likely to facilitate that throughout their lives. He also thought that, as the Guardian had acknowledged, there was much to be gained by the children seeing any improvement in M’s demeanour that there may be if her mental health were to improve, which would help them to understand better her difficulties in providing appropriate care for them in the past.

He thought this a case in which the children were likely to derive positive benefits from contact with their parents now and in the foreseeable future. He proceeded on the basis that although contact with the birth family can take place in the context of adoption, it is in reality an exceptional course and he thought it likely to militate against the benefits that might flow from adoption. He decided that the situation would be better facilitated by long term fostering. He added (§67):

“Such an approach will also have the advantage that as the children will not cease to be members of their birth family, they are more likely to retain a more meaningful tie with their cultural heritage. Although this is a matter which has not been at the forefront of the decision making process in this case, it will be a beneficial incidence of it.”

The judge explained (§68) why he had differed from the guardian and the LA. He referred to the guardian’s acknowledgment in evidence that she found it a finely balanced and knife-edge decision to make. He said he had decided that the pro-adoption views had too little regard to “the strength, longevity and particularly the value of the contact with the parents, which is likely to endure into the future for the benefit of each of these children” and “too much regard was had as to the apparent views of C, who for the reasons I have provided cannot be safely taken to have fully understood the full implications of the care options in this case”. He considered the views of the guardian and the LA to “have been overly influenced by what they consider desirable in this case, rather than what is required in the best interest of these children.”

The judge expected the LA to monitor the quality of the contact and its effect on the children, with it only continuing if it confers a positive benefit on them. He recognised the difference between F’s relationship with the children and M’s and, although he had “no doubt as to the likely quality and endurance of F’s contact”, it is apparent from §44 (see earlier) and §71 that he was less confident about M’s, although in §69 he spoke of the possibility that her relationship with C may improve with appropriate assistance and once the stress of the court proceedings was at an end and M knew her position. He recommended to her that she should accept assistance with her mental health and therapeutic support in connection with her relationship with C.

The judge thought that even if things did not improve with M and contact with her ceased, “the undoubted benefits of the children’s ongoing contact with F are of such value that the ultimate disposal of this case lies with the care of these children in the context of a placement in long term foster care so as to facilitate, inter alia, their ongoing contact with F”. In order to provide sufficient emotional security in the placement, he considered that there should be a reduction in the extent of the contact so that it would eventually be every two months.

We have been told, by way of postscript to the judgment, that the children’s contact with M was suspended by the court on 29 April 2013 following an incident when her behaviour was volatile and aggressive and caused both children great distress. It remains suspended.

We were much assisted by counsel on all sides and are particularly grateful to Mr Miller for appearing on F’s behalf pro bono. In order to save funds, the guardian was not in attendance but a short written skeleton argument was provided on her behalf which supported the LA’s appeal.

The LA argued that Judge Baker was wrong in finding that long term fostering was a more suitable plan for the children than adoption and that their welfare did not require them to be adopted. Their submissions proceeded upon the basis that there was no prospect of either child returning to live at home during her minority, a proposition which was not challenged on behalf of the parents. They also proceeded upon the basis that adoption provides a more secure and stable life for a child than long term fostering. This was more controversial as it will have been seen from my summary of the judgment that the judge did not accept that long term fostering was as lacking in security as the LA argued.

The LA invited attention particularly to the situation of V, aged 4. They submitted that it is highly unusual for a child of this age to remain in care in a long term foster placement with no prospect of going home rather than being adopted, stressing the desirability of a secure emotional base for the child, buttressed by an equally secure legal framework. They submitted that there would have to be powerful factors to drive the judge to a contrary conclusion. They acknowledged that adoption becomes more difficult as a child gets older and finds it more difficult to cut themselves off from their natural family and that it would therefore be more difficult for C at 9 than for V at 4 but submitted that it would not be impossible. They criticised the judge’s approach to C’s expressed wish to be adopted, submitting that he had not identified a basis for his conclusion that C had not had the two available options fully explained to her. He also failed, they said, to evaluate C’s views in the wider context of her reaction to contact which had, on occasions, been to express a wish not to see M or to see her less frequently.

They submitted that the judge failed to integrate his factual findings with his consideration as to the children’s welfare interests. Contact was an example of this, they argued, suggesting that it was difficult to reconcile the judge’s reasoning in relation to it. On the one hand, he identified an alarming picture of contact with M which seemed markedly against the children’s best interests and after which C had, on a number of occasions, asked not to go to see M. On the other, he viewed contact as so important that it pulled powerfully away from adoption. The LA argued that events during contact showed it was not reassuring for the children but undermining of the security of their foster placement, potentially damaging to their self-esteem, and at times distressing, frightening and emotionally harmful. They submitted that the judge failed to identify and appreciate the broad pattern of contact which was unpredictable and inconsistent and was not only failing to meet the children’s needs but running wholly counter to them. Had he recognised that, they said, he would have realised that it was not of a quality to justify denying the children the opportunity of adoption which would give them the best chance of a secure future.

The LA acknowledged that F’s contact was more positive and did not seek to undervalue his commitment or contribution. However, they said, his contact was not flawless in that he could not provide appropriate boundaries for the children during it. Furthermore, he was a long standing alcoholic whose problem had not yet been addressed, he had been found to lack insight into his own parenting deficiencies, and he failed to acknowledge that there had been significant concerns with M’s care of the children in the past. The judge had to look at the broad canvas to evaluate the children’s needs and even allowing for F’s rather better contact, there were not sufficient positives to justify the course he took.

They argued that in giving the determinative weight that he did to the children maintaining their relationship with their parents through contact, the judge lost sight of the essential question of what was in the best interests of the children in the long term and of a number of fundamental features of the evidence, failing to appreciate the significance of the constellation of factors that he had found made it impossible for the parents to resume the care of the children, of the inability of the parents to meet the children’s needs in contact consistently, or arguably at all, and of the frequent threat that contact posed to the security of the children’s placement. He also overlooked that adoption would promote the safety and security of the children through the remainder of their childhoods, offered emotional and psychological advantages, and would better equip them for their lives. These were weighty considerations, they argued, and the speculative and rather theoretical advantages of continuing contact in the context of long term fostering were much less substantial.

The LA submitted that the judge was wrong to think that long term foster care could provide sufficient security for the children and that he failed to recognise its disadvantages. They submitted that adoption offers the child the intangible benefit that he or she is “claimed” by the adoptive family in a way which is not replicated in a long term foster placement. Furthermore, a long term foster carer does not have the same objectives as an adopter and can decide not to foster any longer, they submitted, and it is a feature of long term foster placement that there are interruptions to the placement. They invited our attention to the fact that these children have had a move of foster placement, albeit that this is in the context of temporary foster care rather than long term foster care. Adoption also avoids the potential disruption to the child’s placement of applications by the parents to change the contact regime or to discharge the care order, in relation to which an order under section 91(14) Children Act 1989 is only a partial protection. The LA pointed, by way of example of the potential problems, to the recent suspension of M’s contact which has necessitated further litigation. They submitted that there can be no doubt in this case that M will continue to suffer from fluctuating mental health problems which will provoke the suspension of contact and applications for it to recommence.

Counsel for each of the parents submitted that the judge was not wrong in his decisions. To a large extent, their submissions sought simply to reinforce the reasons he himself gave. This is in no way a criticism and no doubt reflects the clarity of the judge’s explanation of his reasons.

Counsel for M, Ms Erlen, invited attention to the guardian’s acceptance that this was a finely balanced case. She argued that the judge was entitled to find that the benefits of preserving the children’s relationships with their parents outweighed the benefits of adoption. She stressed that a parent’s consent to the making of an adoption order can only be dispensed with if the child’s welfare requires that and that adoption should only be ordered if it is necessary; that was not so here, she said.

She relied on the judge’s acceptance that the children were “adorable” and a credit to their parents and on his finding as to the strength of the children’s attachment to their parents. This enabled the judge, she said, to give value to the relationship despite the less positive aspects of the care of the children and to take the view that the relationship needed to survive through direct contact rather than there being adoption which would bring face to face contact to an end.

She stressed that the children’s cultural and linguistic heritage would not be matched in an adoptive (or foster) placement and that continuing contact would provide them with an opportunity to understand their cultural and ethnic background and keep up their language skills.

She submitted that by virtue of her age, it would be difficult for C to settle into an adoptive placement. She placed reliance on C’s comment that she wished to remain a V all her life. In response to the LA’s concentration on V’s situation, Ms Erlen acknowledged that things may have been different had V been an only child but sought to refocus attention on both children, reminding us that C will be hard to place at 9 years old and that a search for adopters who will take C may well create delay for V. Both children, she argued had well established bonds with their family which could not be displaced and replaced.

She resisted the suggestion that the judge had failed to analyse the background to contact and submitted that he was entitled to have regard to the positive features that she said were demonstrated in contact most of the time.

She submitted, accurately, that there was no evidence that F’s use of alcohol had impinged on the quality of contact. As to M, she submitted that M’s erratic behaviour at times has been provoked by the acute loss she is feeling in relation to the children and her stress in this regard. However, she said that M had not consistently undermined the security of the foster placement and said that from April 2012, M has had contact separately from F so has had little opportunity to undermine his role. She invited us to take account of the M’s limited English which means that she sometimes expresses herself inappropriately.

She said that the judge was looking at the longer term benefits of contact and that it was right to allow the children the opportunity to know M when she is again well and for there to be an opportunity for therapeutic work to be done to improve the relationship between C and M.

Ms Erlen submitted that the finding that the children cannot return to their parents’ care does not propel the court inexorably towards a conclusion that adoption was required. She invited attention to what Lady Hale said in §197 of Re B in order, I think, to underline that the court has to consider whether a child can be protected in other ways. She disputed the suggestion that long term foster care would be insecure. The LA should not rely on its own possible failings in supporting the placement, she said, and in any event, the care plan would be under the scrutiny of the Independent Reviewing Officer. Section 91(14) orders would, she said, protect against disruption by virtue of applications by the parents.

Counsel for F, Mr Miller, also reminded us that adoption does not follow inexorably from the fact that a child cannot live with its parents. He stressed the high bar that has to be surmounted before there can be adoption. He commended the judge’s decision to us as a tailor made solution devised by him for the children rather than an acceptance of the “default position” of adoption.

He submitted that what was demanded in the interests of the welfare of these children throughout their minorities was a continuing relationship with their parents and that an order that brought that to an end was contrary to their best interests. He said that in so deciding the judge had been entitled to conclude that there were significant attachments to the parents, particularly F, and that the children had enjoyed some good parenting which had manifested itself in positive aspects of their personalities. His decision rested on his assessment of “the strength, longevity and value” of the relationship and his judgment that there was a significant risk that the children would suffer a real sense of loss which may well undermine their well-being now and in future. Mr Miller submitted that these observations were open to the judge on the evidence and that they drove him to an unimpeachable conclusion that there should be long term fostering rather than adoption despite his recognition of the perceived benefits of adoption. Indeed, he submitted, on those findings a decision to place the children for adoption would be open to significant criticism. Added to these factors, there was the advantage that remaining members of their birth family would make it more likely that the children would retain a more meaningful tie with their cultural heritage.

He underlined that the guardian herself had acknowledged in evidence that a safe and secure environment can be provided by both adoption and long term fostering and submitted that the judge was right to be unimpressed by the LA’s arguments about the potential failings of long term foster care.

Like Ms Erlen, Mr Miller acknowledged that things may have been different if V had been an only child but sought to refocus attention on C and the implications that her age and attachment to her parents had for both of the children given that they were to remain together. He submitted that, as the LA acknowledged, C is at the upper end of the age group for whom adoption is a viable possibility. He submitted that the judge was right not to place too much reliance on C’s stated view about adoption given a young child’s lack of ability fully to understand the consequences of their decisions, a fortiori where, as here, the judge was not satisfied that she had been appraised of the full facts.

Similarly, Mr Miller brought us to focus on F separately from M, underlining the stark differences between the parents, with far greater problems attaching to M than to F. What Mr Miller properly acknowledged to be F’s “inglorious past” went to whether the children could be rehabilitated and whether there was a need for a care order but did not, he said, detract from the quality of the continuing relationship between him and the children and was not relevant to the debate over whether there should be long term fostering or adoption. F’s contact was not attended by problems such as those that attended M’s contact and the negative aspects of M should not detract, Mr Miller said, from the benefits that F could bring to the children. As a practical matter, the problems she posed could be dealt with by the suspension or termination of her contact with recourse ultimately available to section 91(14) Children Act 1989.

After prolonged and anxious consideration of this case, I have concluded that the judge was wrong, as the LA submitted. In so saying, I recognise that his determination is immensely careful and detailed and followed a long hearing and I have made allowance for his immersion in the case and for the opportunity, not available to us, that he had to assess the parents and the evidence of the professionals, for instance about C’s views, about the relative security of fostering and adoption, about the implications of contact and so on.

I should say immediately that given the ages of the children and their knowledge of and relationship with their natural family, it certainly cannot be said that the case for adoption speaks for itself, if indeed it ever does. Very careful consideration has to be given to whether these children’s welfare required that the parents’ consent to adoption be dispensed with and whether adoption is necessary. I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering. It would seem that these arguments were rehearsed only in oral evidence although they may well also have been picked up in documents provided by counsel by way of opening and closing submissions. It is not the first time that I have remarked on an absence of such material from the evidence, see Plymouth CC v G (children) [2010] EWCA Civ 1271. Care should always be taken to address this question specifically in the evidence/reports and that this was not done here will not have assisted the judge in his determination of the issue.

The decision as to what form of placement was right for the children had to proceed on the basis that, as the judge found, because of their history there is a particular requirement for their emotional needs to be met and they have an enhanced need to be cared for in a safe and secure environment. He accepted that in many cases a particular need to be cared for in a safe and secure environment can best be met by adoption, “the undoubted benefits of adoption being manifest”, as he said. However, he thought that a safe and secure environment could be sufficiently provided in long term foster care. I will come in a moment to consider whether that was a tenable position on these facts.

What drove the judge away from adoption was principally, I think, his view that there was a long standing relationship between the children and their parents which he saw as strong and valuable and which had served the children well in that they had developed into lovely children, and also C’s age. He thought that future contact would confer “positive benefits” on the children now and in the foreseeable future whereas if it did not take place, there was a significant risk that they would suffer a real sense of loss that may adversely affect their well-being. That led him to the say that contact with the parents should be preserved.

A central feature in my conclusion that the judge was wrong in his determination is the nature of M’s contact with the children. I accept the LA’s submission that when he moved from his review of the facts to his decision as to what orders should be made, the judge either failed to recollect or failed to give weight to the significantly detrimental features of M’s contact with the children. In my view, they are right to identify that notwithstanding some good bits of M’s contact, overall it had been potentially damaging to the children’s emotional state and to the security of their placement in care. The difficulties with it continued right up to shortly before the hearing. Furthermore, the children’s experience in contact had to be seen together with the care that they had experienced when living at home with M. Whilst I do not want to detract from the credit that the judge gave to the parents for the way in which the children had turned out, equally much of what is described about the children’s upbringing was damaging. M’s behaviour and her comments and questions during contact provoked at least C to recall difficult features of their home life. They must also have generated uncertainty for the children and raised questions in their minds about where they were going to live and whether, for instance, they were letting their parents down in some way by not saying they wanted to return home. Their experiences in contact with M had also forced both children to think about whether they wanted to see their parents, as we can see from the fact that each girl at times said that she did not want to see M or did not want to see her so often. Whatever the judge made of C’s letter, it shows that she would rather forgo living with F than risk being in a situation when “mum would just come”.

The judge thought that with appropriate assistance and the ending of the stress of the court proceedings, things may improve although he had to acknowledge (§69) that this may not be the case. Given the lack of insight on M’s part into the harm caused to the children by her behaviour at contact and into her own mental health, this was rather an optimistic assessment. The problems in M’s relationship with the children and in relation to her mental health were of long standing and had not been tractable so far; she does not have a good record of consistently accepting assistance with her mental health issues. It is now apparent that far from improving once the decision about the children’s future was taken, the situation became so bad that contact had to be suspended.

It appears to me that the judge did not sufficiently appreciate and factor into his conclusion the likelihood of a continuation of M’s difficulties and the ramifications of that. The LA’s submission that one could anticipate a cycle of contact being suspended and then renewed, with attendant litigation, seems to me to be realistic. A child of C’s age would inevitably become involved in this as she would be aware of, and probably unsettled and upset by, the ups and downs in contact and in M’s mental state and may also be consulted as to her wishes and feelings about contact. With time, the same would happen with V. I do not see a section 91(14) order as a complete answer to this. It may be some time before despair at the progress of contact led to an application for such an order and, if it followed the pattern of contact in 2011 and 2012, poor contact would have been damaging for the children meanwhile and no doubt also undermining of their placement. Furthermore, even when made, a section 91(14) order is not, of course, a bar to applications but a leave filter and it might not shield the children (C now and V as she got older) and their foster parents completely.

I agree with Mr Miller that it is important to consider the parents separately and to recognise the good quality of F’s contact. However that has to be seen against the backdrop of his failure to shoulder his responsibility towards the children in the period when M’s ability to care for them was declining. I am less persuaded that his status as an untreated alcoholic is of relevance as it does not appear to have led to any difficulties in contact sessions. But the benefits for the girls of contact with F have to be seen in the context of the difficulties over M’s contact. Those are potentially so disruptive that the benefits of contact with F would need to be very significant indeed to outweigh them and the evidence does not seem to me to establish that.

Also entering the picture is C’s view. The judge thought she may have been given a rosy tinted view of adoption and not told that long term fostering could provide the same security. My difficulty with that is that I do not think that fostering and adoption can, in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue.

With that caveat, I make the following observations:

Clearly a child of C’s age is unlikely to have understood all the ramifications of the orders that the court may make and the judge was right to be cautious in the reliance he placed on C’s views, particularly given her comment about remaining a V all her life. However, at the very least the evidence (including her letter) did appear to indicate that she had accepted that a return home was not possible and was ready to consider adoption, so there was no complete emotional barrier to it such as one might find with a child of that sort of age. She appears to be a child who has quite a realistic appreciation of her family’s shortcomings. The view she expressed in her letter was that it would be better not to live with F as that would necessarily bring M into their lives. Furthermore, as the LA submitted, her views about adoption also need to be seen in the wider context of her reaction to the difficulties in contact which had been to pull back from her relationship with M at least and to request less or no contact with her.

There was complete agreement that the children should be placed together. It is always difficult to balance the differing needs of two children who are to remain together and it would be easy to concentrate on C, because she is older and more articulate, and to lose sight of V’s needs. V is only 4 and has a very long time in foster care ahead of her. Adoption is likely to be easier for her to accommodate and its benefits are more obvious for a child of her age as are the potential disadvantages of spending the majority of her childhood in foster care, with contact with her parents only 6 times a year.

Reviewing the evidence as a whole, I am driven to the conclusion that the judge was wrong to conclude that long term fostering would serve the interests of these two children. I would accept the LA’s argument, supported by the guardian, that their welfare required that they be adopted and I would therefore allow this appeal, substituting care orders with the care plans for adoption and make placement orders, dispensing with the parents’ consent on the basis that the children’s welfare requires it to be dispensed with.

I agree with both judgments.

Like my Ladies I do not find this an easy decision. Before Re B [2013] UKSC 33, I would have been inclined to say that I would not interfere with the judge’s discretion. Now that Re B has held that the question whether to make a care order with a view to adoption is an evaluative question not a discretionary question we have to consider whether the judge was right to reject the course proposed by the local authority. That in turn requires us to consider whether there is interference with the rights guaranteed by the ECHR and whether, if there is such interference, that interference is proportionate. If we consider that the judge was wrong in his conclusions we must intervene.

Assuming that difficult task I am persuaded that the learned judge was wrong not to make a care order with a view to adoption because he failed to give sufficient weight to what Black LJ has called (para 91) the significantly detrimental feature of M’s contact with her children. In the light of the history of those features, it is impossible to be confident that they will not recur during any future contact and the children should not have to be exposed to the inevitable distress that applications for such contact will bring in its wake. The welfare of those children does, therefore, require that they be adopted for that reason and the other reasons given by Black LJ.

Of course I am very conscious that the judge had had the advantage of seeing and assessing all the relevant witnesses. But that mantra cannot rescue a “wrong” decision. I certainly do not differ in any way from the judge’s account of the evidence of those witnesses. It is the conclusion that he draws from that evidence which, with respect, I cannot agree with if one weighs up all the competing factors present in this difficult case.