G (A Child)

This appeal relates to a boy G, born on [on a date in] 2011 and now aged nearly 3 years, who was made subject of a final care order and an order authorising the local authority to place him for adoption made on 2^nd November 2012. The underlying facts are to a degree unusual, and, as a result, they have thrown up a technical novelty with respect to the law relating to adoption. In this judgment, after a short description of the background circumstances, I propose to deal with the point of law and procedure before turning, finally, to consider the outcome of the appeal.

G’s mother, at the time of the child’s birth, concluded that she was unable to provide a home for her son. At that time the mother was in a relationship with a man, DT, who is not G’s father. The identity of G’s father is unknown. Shortly after G’s birth the mother handed over the care of G to the appellant in these proceedings, AR, who is the mother of DT. It follows that the appellant is in no manner related to the child G.

The appellant cared for G from those early days until the conclusion of the care and placement order proceedings some 18 months later in November 2012. In consequences of the court’s orders, G was removed from her care at that time and was, subsequently, placed with prospective adopters in May 2013. The prospective adopters issued an application to adopt G on 19^th August 2013.

On 21^st October 2013 the appellant made an application within the adoption proceedings seeking “leave to oppose the adoption order on the ground that there has been a significant change in her circumstances”. The application form then went on to list details of the alleged changes to which I will turn later in this judgment.

The appellant’s application came on for hearing before Her Honour Judge Edwards in the Swansea County Court on 29^th November 2013. The local authority, the appellant and the Children’s Guardian were all legally represented at that hearing. The mother was unrepresented but attended in person.

The judge, correctly, held that a formal application for leave to oppose adoption under the Adoption and Children Act 2002, s 47 (“ACA 2002”), may only be made by “a parent or guardian” (within the meaning of the ACA 2002) and, on any view, the appellant did not come within the terms of that provision.

The judge, therefore, considered what alternative procedural avenues might be open to the appellant. She described the position in these terms at paragraph 15 of her judgment:

On the facts of the case the judge held that any such application would lack merit and be wholly unjustified. She therefore refused AR’s application and invited her to leave the courtroom.

The appellant now seeks to challenge the judge’s determination of her application. On 14^th February 2014 I granted permission to appeal on the basis that the procedural course taken by the judge, which assumed that a person in the position of the appellant could only be heard in opposition to an adoption application if they met the criteria under the Children Act 1989 s 10(9) (“CA 1989”) to apply for a residence order, merited reconsideration. In addition, on the information that was then available, I considered that the appellant’s case on the merits had a reasonable prospect of success.

A placement order is an order made by the court “authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority” (ACA 2002, s 21(1)).

The appellant’s initial intention was to apply to revoke the placement order. Such an application may be made by “any person” (ACA 2002 s 24(1)). However s 24(2) limits those who can apply to the court to revoke the order without first obtaining leave:

In addition, section 24(3) provides that:

It is accepted that section 24 is wide enough to apply to the appellant, being “any person”, provided that the court was satisfied that there had been “a change in circumstances since the order was made” and the grant of leave was justified in accordance with earlier case law (M v Warwickshire County Council [2008] 1 FLR 1093). However, because G had been placed for adoption with the prospective adopters before the appellant issued any application, the effect of s 24(2)(b) closed off that procedural avenue to her.

Once an adoption application has been issued with respect to a child who is the subject of a placement for adoption order under ACA 2002, s 21, no “parent or guardian” may oppose the making of an adoption order without the court’s leave and the court cannot grant such leave unless it is satisfied that there has been a change in circumstances. The relevant statutory provisions are in ACA 2002, s 47 and are as follows:

The terms “parent” and “guardian” in ACA 2002, s 47 are defined elsewhere within the 2002 Act. So far as “parent” is concerned, s 47(1) states that s 47 is “subject to” s 52. Section 52(6) defines “parent” as meaning “a parent having parental responsibility”; thus a father who does not have parental responsibility falls outside s 47.

The term “guardian” is defined in ACA 2002, s 144 as having the same meaning as in CA 1989 and includes a special guardian within the meaning of that Act. CA 1989, s 105(1) defines “guardian of a child” as meaning a guardian appointed in accordance with the provisions of CA 1989, s 5.

It is accepted that, despite the fact that she cared for G for the first 18 months of the child’s life, AR falls outside the statutory definitions of parent or guardian and cannot make an application for leave to oppose the making of an adoption order with respect to G by seeking to come within the terms of ACA 2002, s 47.

I am very grateful to Miss Lorna Meyer QC for identifying the options within the 2002 Act which may be deployed to accommodate the position of an individual such as AR, who is not related to the child but who has played a significant part in the child’s early life and who may, depending on the factual context, establish a good reason to be heard within the compass of any subsequent adoption proceedings. Miss Meyer draws attention to the provisions of ACA 2002, s 29(3) and (4) which provide:

Miss Meyer submits that the effect of s 29(3) is to override the court’s general ability in family proceedings to make a residence order of its “own motion” and to operate as a bar to the making of a residence order where a placement for adoption order is in force. Section 29(4) gives a legal route by which the appellant, as “any other person”, could legitimately have applied for the court to consider the making of a residence order in her favour, even though the child had been placed for adoption and an application for an adoption order had been made. However, in order to come within the provision, s 29(4) provides that, before she may make an application for a residence order, AR would have to obtain the court’s leave to do so under that sub-section.

Miss Meyer’s submissions move on to consider the procedural structure within which an application for leave under ACA 2002, s 29(4)(b) should be made. In the absence of any express provision in the Family Procedure Rules 2010 (“FPR 2010”) she submits that the application would fall to be dealt with under FPR 2010, Part 18. That submission is plainly right.

Unlike the statutory provisions governing an application for leave to apply to revoke a placement order (s 24) or leave to apply to oppose an adoption (s 47), s 29(4)(b) does not contain an express statutory requirement for the court to be satisfied that there has been a “change in circumstances”. Miss Meyer submits that, nevertheless, such a requirement should be read in to the statutory provision on the basis that it would seem inappropriate for a person who is neither a parent nor a guardian to face a lower requirement than the one facing a parent or guardian on the question of whether or not they are allowed back in before a court to contest either the continued existence of the placement order or any subsequent adoption application.

In any event Miss Meyer submits that the question of whether or not to grant leave to apply for a residence order under s 29(4) is one to which the principle that the child’s welfare is the paramount consideration established by ACA 2002, s l applies. Miss Henke QC, for AR, agrees that s 1 applies to the determination of a s 29(4) application for leave. Despite the confidence properly generated by receiving concurrent submissions on this discrete point from two expert leading counsel, there is a need to tread with caution with respect to this issue in the light of the extant case law which establishes a different approach to the application of the paramouncy of the child’s welfare under s 1 with respect to, on the one hand, an application to oppose adoption under s 47 and, on the other hand, an application for leave to apply to revoke a placement order under s 24. The relevant case law is well known to those working in the field of adoption and it is not necessary to labour the point in this judgment.

In short, this court in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069 held that, when considering an application by a parent for leave to oppose adoption under s 47(5) the court’s decision whether or not to grant leave was governed by ACA 2002, s 1 meaning that the child’s welfare throughout his life was the court’s paramount consideration. Conversely, this court held in Warwickshire County Council v M that, in the context of an application under s 24 for leave to apply to revoke a placement order, the court’s determination is not governed by s 1 and the child’s welfare, whilst relevant, is not the paramount consideration.

The decisions in the cases of Re P and Warwickshire CC v M are not in conflict. They were determined by the Court of Appeal within five months of each other and Thorpe LJ was a member of both constitutions. The difference in outcome with respect to the two apparently similarly worded statutory provisions arises from the application of ACA 2002, s 1(7). ACA 2002, s l applies whenever a court is “coming to a decision relating to the adoption of a child” (s 1(1)). Section 1 (7) reads as follows:

In Re P in the context of an application for leave to apply to oppose an adoption under s 47, the court held that such a determination was “a decision relating to the adoption of a child”, and, because it did not relate to “the initiation of proceedings in any court”, s 1(7)(b) applied thereby bringing such a decision under the requirement within s 1(2) to afford the child’s welfare paramount consideration. Conversely, the court in Warwickshire CC v M, when considering an application for leave to apply to revoke a placement order under s 24 considered that such an application was one relating to granting leave for the “initiation” of proceedings by an individual under the Act. In consequence, and in contrast to s 47 which merely gives leave to oppose an existing application, an application for leave to apply to revoke does not fall within s 1(7)(b). Further, as was held in both Re P and in Warwickshire CC v M, s 1(7)(a) does not apply to an application which is simply for leave to apply, as such a decision is not a substantive decision to make, or revoke, an adoption order, placement order or contact order under s 26. It therefore followed, in the Warwickshire case, that an application for leave to apply to revoke a placement order is not one to which s 1 of the 2002 Act applies.

In the context of the present proceedings, is an application for leave to apply for a residence order under s 29(4)(b) an application for leave for “the initiation of proceedings” or not? It is, in my view, not possible in this context to distinguish between an application for leave to apply to revoke a placement order and an application for leave to apply for a residence order in ongoing adoption proceedings. Both are for the “initiation of proceedings” and consequently an application under s 29(4)(b) falls outside s 1(7) in the same way as this court held in Warwickshire CC v M was the case with respect to an application under s24. It follows that a court is not required to afford paramount consideration to the welfare of the child when determining whether or not to grant leave to apply for a residence order under s 29. There is, however, no reason for departing from the approach described by Wilson LJ, as he then was, in Warwickshire CC v M at paragraph 29 when describing the second stage of an application for leave under s 24(3) once a change in circumstances has been established:

Finally, in terms of the test to be applied, Miss Meyer’s submission that an applicant for leave under s 29(4) must establish, as a first stage, “a change in circumstances”, in like manner to the test facing those who apply under s 24 and s 47, is not accepted by Miss Henke. She submits that whether or not there has been a change in circumstances may be relevant in some cases, however, where, as here, the provision applies to “any other person” that class of individuals could include, for example, a natural father of a child who lacks parental responsibility. He, it is suggested, may emerge into the subsequent adoption proceedings late in the day, and have played no part in the “circumstances” which justified the making of the original placement order. Miss Henke therefore argues that there should be a one stage test within which the court will, naturally, look at the previous factual matrix and compare the current circumstances but without the formal structural need for a discrete first stage at which “a change in circumstances” has to be established.

There is, on this point, a danger of the court dancing on the head of a pin and considering a difference which, in reality, is without a distinction. In any application of this nature, where the applicant is not simply wishing to have a voice in the proceedings but is seeking leave to apply for a residence order, the underlying factual circumstances, and any change in those circumstances since the making of the original placement order, is likely to be of great relevance. Parliament has, however, held back from introducing an express statutory provision requiring the court to be satisfied about a change in circumstances where the application is for leave under s 29(4), in contrast to the approach taken in the other two provisions. I would therefore step back from holding that there is such a specific requirement where leave is sought under s 29(4). However, when considering whether to grant leave to apply under s 29(4), and when adopting the approach described by Wilson LJ in Warwickshire CC v M, I consider that any change in the underlying circumstances will be of great relevance both when the court assesses the prospects of success for the proposed residence application and when considering the welfare of the child.

I am most grateful to Miss Meyer for the insight that she has brought to the application of the statutory scheme to the unusual circumstances of this case. I agree with her basic submission that the circumstances of this appellant could have been catered for by treating her application as an application for leave to apply for a residence order under s 29(4) for the reasons I have given. If such an application were made there is no discrete requirement for the establishment of a change in circumstances, ACA 2002, s 1 does not govern the determination of the application by requiring the court to hold the child’s welfare as its paramount consideration, but the application would fall for adjudication in accordance with the approach described by Wilson LJ in Warwickshire CC v M.

Whilst Miss Henke concurred with Miss Meyer’s submission that s 29(4) was apt for providing an avenue through which her client might ask a court to consider reversing the march towards adoption and replacing the child in her care under a residence order, her fall back position was that, in any event, AR was able to apply to be joined as a party to the adoption proceedings whether or not she was given, at the same time, leave to apply for a substantive order. In this regard, as a matter of technicality, Miss Henke is plainly right. FPR 2010, r 14.3(3) provides that:

Dame Elizabeth Butler-Sloss P, at paragraph 24 of her judgment, stated:

More recently in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737, [2012] 2 FLR 1358 considered the approach to be taken to an application by a grandmother who seeks to be joined as a party in ongoing proceedings under the Children Act 1989. The relevant rule, FPR 2010, r 12.3(3) is in like terms to r 14.3(3). In Re B the paternal grandmother wished to be considered as a potential carer for a child who was subject to care proceedings. She therefore applied to be joined as a party to those proceedings. In the course of the leading judgment given by Black LJ reference was made to the existence of authority to the effect that, although no s 8 order is actually being sought by the person who is seeking to be joined as a party, reference must be had to the test in CA l989, s 10(9) which establishes the approach to the grant of leave to an individual who wishes to make an application for a residence order. The previous authority referred to is that of W v Wakefield City Council [1995] 1 FLR 170 and the earlier cases referred to within the judgment of Wall J (as he then was) in that case. Black LJ, in Re B, saw no reason for questioning that approach. She said, at paragraph 37:

Miss Henke seeks to draw a distinction between these two authorities and to argue that the wider unfettered discretion described in the earlier case of Re R should be preferred. I do not agree. The case of Re R involved an individual, the father without parental responsibility, whose role in the proceedings was simply to have the facility to be heard on the questions that fell to be determined with respect to his child. As a man who had never met the child, and who was serving a term of imprisonment, there was no prospect of him making any substantive application for a court order in his favour other than, possibly, contact. At paragraph 37 of her judgment, Black LJ refers to an individual who would “have no other legitimate role in the proceedings”. In the context of Re R, I would suggest that for a father simply to have the facility to be heard by the court is of itself a legitimate role in proceedings irrespective of whether he seeks to make an application for a substantive order. Whether or not such an individual should, in a particular case, be joined as a party will, as Butler-Sloss P held in Re R, turn on the facts of each individual case.

In contrast the circumstances in Re B, were, in common with the present case, that the applicant did not simply wish to be heard in the proceedings; she wanted to be considered as a potential carer for the child. In those circumstances, in agreement with Black LJ, I consider that the court should have an eye to what may follow joinder. In the context of the present case, that must surely apply all the more where the applicant is not related to the child in any manner whatsoever.

This court has had the luxury of detailed submissions from leading counsel on the procedural issues raised by AR’s application which is in contrast to the circumstances in which HHJ Edwards was called upon to make her own determination in November 2013. Although the judge did consider whether AR should be joined as party and questioned whether she would be a candidate for leave to apply for a residence order if the criteria in CA 1989, s 10(9) were applied, it is not possible to hold that the judge was conducting an exercise compatible with the different considerations which would apply under ACA 2002, s 29(4). It therefore follows that the judge fell into error and this court therefore now needs to evaluate AR’s application afresh within the legal structure that I have described.

The final hearing leading to the making of the care order and placement for adoption order with respect to G was conducted by Miss Recorder Morgan. Her judgment of 2^nd November 2012 sets out a detailed evaluation of the appellant’s history and of her capacity to provide safe and good enough parenting for G. It is grim reading. The decision whether or not to remove G from the appellant’s care was not finely balanced. The Recorder’s judgment is a model of clarity and indicates that she had absorbed herself in the detail of the case. Such is the weight of the judgment that it is unnecessary to describe the various factors underpinning the court’s decision in anything more than headline terms. The detail that sits below those headlines is to be found in the Recorder’s judgment. The headline points are:

The appellant accepted that the Local Authority were right to start care proceedings when they did;

The appellant had lived at 25 separate addresses in the period l982 to 2011;

The appellant had been married five times including her current marriage which was to a Pakistani national who was residing in the UK illegally. The applicant is a white Welsh woman;

The appellant has a history of failed relationships and has demonstrated significant distress when relationships have ended in the past. The fragility of the then current relationship with her fifth husband was a negative risk factor in any long term placement of the child with her;

The child’s birth was registered by the appellant with a Pakistani surname and forename. The Recorder was not convinced that that step was irrelevant to the appellant’s husband’s application for leave to remain in the UK;

The appellant has suffered significant problems with her mental health since at least l995. In the ensuing years she had taken three overdoses;

She had a significant problem relating to alcohol abuse;

She had problems with her physical health relating back to 1994 when she was severely disabled after a fall. In 2010 her GP reported that she was “very disabled at home with multiple joint pains in her spine, knees, wrists, neck and hips”. In 2011 her GP reported that she had “degenerative changes to her spine and she claims this severely limits her activities”;

The Recorder described the history of the appellant’s care of her own children as being “a matter of enormous concern to me”.

More generally the Recorder identified that, in the past, consultant psychiatrists had identified substantial personality problems which resulted from the appellant’s “appalling upbringing”. That upbringing had been compounded by the abusive and unstable relationships that she had had down the years. She reported having been sexually abused between the ages of 3 or 4 and 10 years old; she had never disclosed this abuse previously and therefore had never had any assistance to deal with those experiences. The Recorder considered the potential for counselling to assist the appellant at paragraph 74 of her judgment in these terms:

Against that very troubling history it is right to point out, and to stress, that reports of the care that AR was giving to G included a number of important positive factors. The baby was well cared for, his needs were currently being met and there was a strong and loving attachment between the two of them. Despite those positive features, the Recorder was very clear that it was not in G’s interests to continue to be cared for by AR.

The application before HHJ Edwards was heard just over 12 months after the Recorder’s damning judgment. The appellant provided a statement for the court in support of her application in which she pointed to the following changes in her circumstances:

She had engaged in and completed six sessions of counselling with a rape crisis and sexual abuse support service. A letter from that service simply confirmed that AR had attended counselling sessions and that the counselling sessions had now ended;

She had separated from her fifth husband and was now in the process of instigating divorce proceedings. She now realised that his motives in marrying her were in order to gain UK citizenship;

She considered that her mental health had “stabilised quickly”, she had not sought assistance from her GP and had not experienced a decline in her mental health following the proceedings as had been predicted by the Local Authority;

She had remained living in her property and undertaken improvements to it;

Her family support was stronger than ever, with all pledging their long-term support for her if the child were to be placed back in her care;

She attended all contacts which were conducted in a positive manner and were plainly enjoyed by the child.

In her judgment, HHJ Edwards considered the matters relied upon in support of the application and held that the evidence did not come near to establishing a change of circumstances. She said “In fact, the statement filed by AR and the mother’s position in these proceedings simply confirms the court’s findings in the care and placement proceedings.” Later, in the context of evaluating the application as if it were under CA 1989 s 10(9) the judge stated:

As I have indicated it now falls to this court to evaluate the factual material drawn together in the judgment of Recorder Morgan and supplemented by the change in circumstances put forward by the appellant. Applying the approach of Wilson LJ, in Warwickshire CC v M, welfare, whilst not the paramount consideration, falls to be considered alongside the prospects of success.

In support of the appellant’s case Miss Henke, both in her skeleton argument and orally, drew a contrast between what might be predicted to have been the situation following the Recorder’s judgment and what the appellant has actually been able to achieve during the following 12 months. She has undertaken a course of counselling and she is in the process of divorcing her husband. Following the decisions of the Supreme Court in Re B [2013] UKSC 33 and this court in Re B-S [2013] EWCA Civ 1146, and other related cases, Miss Henke argues that there is a need to weigh the positives against the negatives with the court achieving a proportionate outcome on this application which is simply for leave to apply for a residence order and/or to be a party to the adoption proceedings. I agree with Miss Henke that that is the manner in which the application falls to be considered.

It is important to note that the transcript of Recorder Morgan’s judgment only became available after permission to appeal was granted. In consequence neither HHJ Edwards nor I had access to the Recorder’s detailed evaluation when making our respective decisions. I consider that if HHJ Edwards had had the Recorder’s judgment available to her, then she might not have characterised the recent developments in the appellant’s life as being, in effect, insignificant. Against the very striking findings that the Recorder describes, I regard the appellant’s ability to access and complete a modest counselling course, to separate from and seek to divorce her husband, and to remain on an apparently relatively even emotional keel to be true positives. However, the negatives identified by the Recorder were deeply, deeply, established, having their background in the very earliest years of the appellant’s life and permeating her ability to function as a reliable, stable and safe carer throughout all the years that followed. The Recorder identified a need for extensive and intrusive therapy of a kind which simply does not equate with the short term counselling intervention that the appellant has apparently undertaken.

In addition, HHJ Edwards drew attention to the respective positions of the mother and AR which, in the judge’s view, had not changed from those presented to Recorder Morgan. This is an important aspect of the case when looking forward to contemplate how young G might grow up if placed back into the care of AR. The mother was, and as I understand it remains, in a relationship with AR’s son, DT. Recorder Morgan expresses a degree of concern about the stability of that relationship, particularly in the light of mental health difficulties that DT experienced in 2012. The mother is a vulnerable individual, whose position before the recorder was to support AR’s claim to care for G but to put herself forward as an alternative carer. Despite the very worrying information about AR that the mother will have learned during the original proceedings, and despite the clear judgment of Recorder Morgan, the mother’s position remains that of supporting AR’s application and putting herself forward as an alternative. Indeed we were told that the mother has now herself applied for permission to oppose the adoption application under ACA 2002, s 47 and that application is currently pending before the county court. In terms of ‘change of circumstances’, AR has not made any concession or indication of acceptance of the court’s overall concern at her actions in taking on the care of G for her own, and her husband’s, ulterior motives. The situation in this important regard remains as it was before the recorder and the potential for G to grow up in an environment of damaging confusion and tension between the key adults (AR, the mother and DT), two of whom who are not related to him, is all too clear.

From the starting point described by the Recorder, it is, to my mind, simply not possible to contemplate that a court would now take a different view and hold that this child’s best interests indicate that he should, once again, be placed in the care of the appellant. Thus, when viewed from the perspective both of the prospects of success and of the child’s welfare, AR’s application for permission to apply for a residence order under ACA 2002, s 29(4) must fail.

In contrast to the position of a father who lacks parental responsibility, and who wishes simply to be heard as a party to a final adoption application with respect to his child, AR, as a non-relative who was, however, the primary carer for G during the first 18 months of his life, does not in my view have a sufficient interest to be joined as a respondent to the adoption application in the absence of any ability to make a substantive application in the proceedings.

In all the circumstances, when applying the statutory scheme to AR’s position as it is now clear the judge should have done, the outcome of the balancing exercise in respect of both s 29(4) and joinder as a party is inevitable; both applications must fail. As a result, there is no ground for overturning the outcome as determined by HHJ Edwards. I would therefore dismiss the appeal.

I agree

I also agree