W (Children), Re

This is an appeal, pursuant to permission given on 21 January 2015 by Ryder LJ, from an order made by Her Honour Judge Watson on 29 September 2014. The judge was sitting in the Family Court at Coventry, hearing public law proceedings in relation to two of the W children. The W family originates from francophone West Africa.

For present purposes the story begins on 12 December 2012, when His Honour Judge Cleary delivered a fact-finding judgment in the course of care proceedings relating to the five W children: in order of seniority, Ja, D, Jr, B and M. The judge made findings against both parents, the most serious being of physical injuries and assaults and of chronic, and on occasions deliberately abusive, neglect. On 31 January 2013, by which time the parents had separated, the same judge made care orders in relation to all five children. For the eldest three the plans he approved were for long-term foster care, for the youngest two, B and M, he approved plans for adoption and made placement orders. Applications by the father and mother for revocation of the care and placement orders in relation to B and M were dismissed on 17 February 2014.

Another child, Je, was born in September 2013. Care proceedings followed. A paternal aunt who lives in Belgium (I shall refer to her as Aunt A) put herself forward as a carer for Je. A viability assessment was prepared. The copy in the bundle before us was neither signed nor dated. We were told that it was dated 10 April 2014 and had been prepared by a social worker who I shall refer to as SWH and approved by her team manager who I shall refer to as TMA.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

On 16 May 2014, B’s and M’s separate foster placements became in each case adoptive placements. The same day, adoption applications, funded by the local authority, were filed in relation to B and M. On 23 May 2014, Judge Cleary gave directions in each case. The parents’ final contact with B and M took place on 7 June 2014.

The IRH in relation to Je took place before Judge Cleary on 13 June 2014. A connected persons report dealing amongst other matters with Aunt A was handed in. It was incomplete and inconclusive: the author concluded that until certain matters had been further explored “I am unable to give a firm recommendation.” Like the previous viability assessment it was neither signed nor dated. We were told that it had been compiled by a social worker who I shall refer to as SWM. The final connected persons report followed on 1 August 2014. Again it was compiled by SWM. This time she made a clear recommendation: “I do not recommend [Aunt A] to be considered as a long term carer for Je.”

In the meantime, on 22 July 2014, notice had been given of the hearing of the adoption application in relation to B fixed for 21 August 2014. A similar notice of the hearing of the adoption application in relation to M fixed for 9 September 2014 was given on 14 August 2014.

Both parents attended the hearing on 21 August 2014, making clear that they wished to oppose the making of adoption orders in relation to both B and M and, in the case of the father, that he sought contact with them. They handed in a letter from Aunt A dated 21 August 2014 confirming that “I agree and wish to care for” B and M. The mother had set out her position in a statement dated 18 August 2014. Directions were given in relation to B by the District Judge. Since the form of order made on that occasion was subject to criticism before us, I need to set out the key parts verbatim:

“UPON both parents attending unrepresented today and submitting their evidence in opposition to the making of an adoption order

THE COURT ORDERS THAT

…

2

The birth parent adoption hearing is relisted on the first open date after 19 September 2014 … that date now being MONDAY 29 September 2013 at 10.30am.

…

3

Respondent Father having indicated that he has issued an application for contact to the child that application is to be listed at the same time as the adoption hearing …”

On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.

First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.

Secondly, Judge Cleary ruled out both parents as carers for Je:

“I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

“Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.

On 6 September 2014 the father made a statement setting out his opposition to M’s adoption. The mother’s statement to like effect followed on 9 September 2014. The same day, M’s case came before Judge Watson. Both parents attended the hearing. Judge Watson made an order which so far as material for present purposes was in the following terms:

“… Upon the Court being informed that the parents application for leave to oppose to the adoption Order in respect of B and also father’s application for contact with both children is being heard on the 29^th September 2014 …

THE COURT ORDERS THAT

1

The birth parent adoption hearing shall be relisted on the 29^th September 2014 and heard alongside the hearing in respect of B …”

On 10 September 2014 the father made a further witness statement setting out the change of circumstances he relied upon for the purpose of his application under section 47 of the Adoption and Children Act 2002. He said “I wish also to put forward my sister [Aunt A] who lives in Belgium as potential carer of B and M.” On 12 September 2014 another social worker, SWSM, made a statement. The local authority’s position statement is dated the same day. These documents are important because they contain the only material Judge Watson had at the hearing on 29 September 2014 showing what Judge Cleary had decided on 1 September 2014 (the transcript of his judgment which we have was not available to Judge Watson). In essence all these documents had to say on this point was that both parents had been ruled out as potential carers for Je under a North Yorkshire ruling. On 24 September 2014 the father made a further statement in response to the statement by SWSM. In it he expressly drew attention to Aunt A’s willingness to care for B and M as being a change in circumstances.

The matter, that is the cases in relation to both B and M, came on for hearing before Judge Watson on 29 September 2014. At the end of the hearing, Judge Watson gave a judgment to which I must return in due course. The order, which is dated 29 September 2014, needs in the circumstances to be set out verbatim:

“Before HHJ Watson sitting at Coventry Family court on 29^th September 2014

Upon hearing from the social worker on oath the Respondent parents both orally and written submissions with the assistance of McKenzie friends and counsel for the local authority

And upon the court adjudicating upon the application for direct contact made by the respondent father erroneously on S8 CA 1989 rather than S51A of the AACA 2002

And upon the court finding that there has been no change in circumstances in either parent which would warrant leave to oppose the making of the Adoption Orders for either B or M

And upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

THE COURT ORDERS THAT:

1

The Application for direct contact by the Respondent father is dismissed.

2

The Court makes an Adoption Order in respect of B to the Applicants to be made 7 days from todays date.

3

The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

4

Permission to Appeal is refused.

5

Permission for a Stay of the Orders made today is refused save that the orders will be made in accordance with the timescales set out above.

6

There shall be a transcript of the Judgement of today’s hearing at public expense.

7

No order for costs.

Ordered by: Her Honour Judge Watson

Dated: 29^th September 2014”

The order bears the seal of the family court. The order does not make clear when it was sealed.

In accordance with the directions given by Judge Cleary on 1 September 2014, ISW prepared a report; it is dated 2 October 2014. His conclusion was unequivocal: “I recommend that Aunt A should not be considered as a potential carer for Je.” He set out his account of telephone conversations he had on 23 September 2014 with SWM and SWH. The father’s response is in a position statement dated 31 October 2014 questioning the quality of ISW’s work.

The father filed his Appellant’s Notice challenging Judge Watson’s order on 3 October 2014. On 6 October 2014 Judge Watson endorsed the court file in relation to B “No attendance by either parent or social worker and final adoption order made.” In fact, as we understand it, the only order in relation to either B or M which has been sealed is that dated 29 September 2014.

On 21 October 2014 McFarlane LJ stayed the order dated 29 September 2014 insofar as it provided for the making of an adoption order on either B or M. The father’s application for permission was determined by Ryder LJ at an oral hearing on 21 January 2015. He gave permission on most, but not all, of the father’s grounds of appeal: see In the matter of W (Children) [2015] EWCA Civ 68. The father had appeared in person, assisted by a McKenzie friend, Mrs Julie Haines. In his order, Ryder LJ spelt out that “the exceptional circumstances in this case merit the provision of public funding to the [father] for representation upon his appeal.”

On 13 March 2015 the local authority filed a Respondent’s Notice seeking to appeal Judge Watson’s orders on grounds overlapping with but more narrow than those being relied upon by the father.

The father’s appeal came on for hearing before us on 18 March 2015. The father was represented by Ms Janet Bazley QC and Mr Matthew Maynard, who had been acting pro bono until, at the last moment, their client was granted legal aid. This is not the first occasion Ms Bazley has appeared before me pro bono in recent months. Her repeated willingness to do so deserves public recognition as well as judicial gratitude. The local authority was represented by Ms Elizabeth McGrath QC. The mother appeared in person with the assistance of a McKenzie friend, Mrs Haines, who had prepared a skeleton argument and whom we permitted to address us.

Before turning to the appeal, I return to the chronology to bring matters up to date in relation to Je. On 15 January 2015, Aunt A made a statement which in certain respects was very critical of ISW’s report. She said:

“ISW seemed cooperative and understanding at first, when he arrived at my place, but after having talked with the social workers SWH and SWM on the phone, during the assessment session in my residence in Brussels, he completely changed his attitude and his view of the case regarding me, which basically became negative.”

On 9-11 March 2015 there was a hearing before Judge Cleary in relation to Je. The case management order he made on 10 March 2015 directed that Aunt A was to be joined as an intervenor and contained various directions for a final hearing before him listed for three days starting on 18 May 2015. Importantly for present purposes, the order provided that the witnesses for the final hearing should include ISW, SWM “in respect of conversations with” ISW, and SWH “in respect of conversations with” ISW.

At the hearing of the appeal we gave the father permission to appeal on an additional ground. At the end of the hearing we announced that the appeal was allowed. We set aside Judge Watson’s orders and remitted the parents’ applications for leave to oppose the making of adoption orders, the father’s application for contact, and the applications by the prospective adopters for adoption orders, in their entirety to the family court at Coventry to be heard by Judge Cleary. We directed that the proceedings were to be listed for urgent directions by Judge Cleary in the week commencing 23 March 2015:

“for the court to consider directions in relation to the following issues:

a.

whether the father and mother should be granted permission pursuant to section 47(5) Adoption and Children Act 2002 in relation to B and M;

b.

father’s application for contact in relation to B and M ;

c.

the issue of the circumcision of M and whether expert evidence is necessary in relation to that issue;

d.

the potential consolidation of these proceedings and the proceedings relating to Je”.

Our order also invited the family court at Coventry to list the proceedings relating to Je alongside the directions hearing relating to B and M.

The appeal raises a number of issues which it is convenient to consider in a roughly chronological order. First, however, I need to set out the relevant legal and procedural framework, for it was the misapplication of this below that was in large measure the reason why, at the end of the day, we had no option but to allow the appeal.

The effect of the placement with prospective adopters of a child in respect of whom a placement order has previously been made is, as explained in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 9, that the parental right to apply under section 24(2) of the 2002 Act for leave to apply to revoke the placement order comes to an end. There is thereafter no opportunity for a parent to challenge the process until an application for an adoption order is issued.

Section 47(5) of the 2002 Act provides that in a case such as this “A parent … may not oppose the making of an adoption order … without the court’s leave.” Section 47(7) provides that:

“The court cannot give leave under subsection … (5) unless satisfied that there has been a change in circumstances since … the placement order was made.”

Rule 14.15 of the Family Procedure Rules 2010, replacing rule 31 of the Family Procedure (Adoption) Rules 2005 and headed ‘Notice of final hearing’, provides that:

“A court officer will give notice to the parties [in accordance with rule 14.3(1) this includes the child’s parents] … –

(a)

of the date and place where the application will be heard; and

(b)

of the fact that, unless the person wishes or the court requires, the person need not attend.”

Rule 14.16, replacing rule 32 of the Family Procedure (Adoption) Rules 2005, provides so far as material that:

“(1)

Any person who has been given notice in accordance with rule 14.15 may attend the final hearing and, subject to paragraph (2), be heard on the question of whether an order should be made.

(2)

A person whose application for the permission of the court to oppose the making of an adoption order under section 47(3) or (5) of the 2002 Act has been refused is not entitled to be heard on the question of whether an order should be made.”

Rule 14.16(2) does not, of course, prevent such a person making an application for contact in accordance with section 51A of the 2002 Act.

The consequence of these various provisions is that service on the parent(s) in accordance with rule 14.15 of notice of the final adoption hearing may well trigger, as in the present case, an application under section 47(5) and also an application for contact.

Some of the implications of this were identified in President’s Guidance: Listing Final Hearings in Adoption Cases, issued by Sir Mark Potter P on 3 October 2008:

“1

This Guidance is issued with the purpose of clarifying the legal requirements and practical arrangements for final hearings in adoption applications.

…

4

Section 141(3) of the 2002 Act and rule 31 place an obligation on the court officer to give to the persons listed in rule 31, including birth parent(s) with parental responsibility, notice of the date and place of the final hearing of an adoption application.

5

The requirement to give notice is mandatory. Notice of the final hearing must be given to any person listed in rule 31 who can be found and there is no discretion to dispense with such notice. The provisions of rule 39 (power of court to dispense with service) do not apply to notice of the final hearing. By rule 32(1) any person who has been given notice under rule 31 has the right to attend the final hearing and, except where rule 32(2) applies, to be heard on the question of whether an adoption order should be made.

…

8

When giving directions for the conduct of the final hearing of an adoption application, the court should consider in particular:

(1)

A person whose application for the permission of the court to oppose the making of an adoption order under section 47(3) or (5) of the 2002 Act has been refused is not entitled to be heard on the question of whether an order should be made.

…

12

The application for an adoption order should be determined at the hearing of which notice has been given under rule 31. If the application is not determined at that hearing, notice of the adjourned final hearing should be given under rule 31 and this Guidance shall apply equally to the adjourned hearing.

13

Where an adoption order is made in the absence of the applicant or the child, the court should consider making facilities available for a celebratory event. The event should not normally be held before the expiry of the appeal period (generally 14 days) ...”

The requirements of proper practice were spelt out very clearly in In re W (A Child) (Adoption Order: Leave to Oppose) [2013] ECA Civ 1177, [2014] 1 WLR 1993, paras 30-31. I need to set it out in full:

“30

… The judge … may determine that leave to oppose should be refused or, if leave to oppose is granted, may at the end of an opposed hearing decide that adoption is in the child’s best interests. The problem arises, of course, because of the practice in many courts of listing the parent’s application for leave to oppose and the adoption application on the same day and, if the parent’s application is dismissed, proceeding then and there to make the adoption order. This practice was criticised by McFarlane LJ in In re B (A Child) [2013] EWCA Civ 421. In that case, as in the cases before us, the judge had made an adoption order on the same day as she had dismissed the mother’s application for leave to oppose under section 47(5). McFarlane LJ said, at para 10:

“That is not a step that should have been undertaken on that day. The judge should have postponed making the adoption order so that the mother had limited time to come to this court, if she wished to, to seek permission to appeal. I would therefore criticise the court in Chelmsford for not allowing a window of time between refusing permission to oppose and granting the adoption order.”

He added, “That is a lesson for the future for other cases.”

31

I agree with all of that. I can understand the pragmatic and very human (and humane) grounds on which judges have come to adopt the current practice, and I can see no reason why the hearing of the adoption application, if the judge thinks this appropriate, should not immediately follow the dismissal of the parent’s application: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563, para 74(ix). Nor do I see any problem if the judge then and there announces his decision that there should be an adoption order. The problem arises if the judge proceeds then and there to make the formal adoption order. For the future, judges should postpone both the making of the formal adoption order and the holding of the celebratory event until after the parent’s time for applying to this court for permission to appeal has expired. (This will necessitate some adjustment to para 12 of the President’s Guidance: Listing Final Hearings in Adoption Cases, 3 October 2008, set out in the Family Court Practice 2013, p 2958. Until new Guidance is issued, para 12 of the existing Guidance should be applied in a manner consistent with this judgment.) It would also be prudent for judges, when dismissing an application under section 47(5), to ask the parent whether an appeal is proposed and, even if told that an appeal is not in mind, to make clear to the parent that the time for doing so is strictly limited.”

I turn now to the various grounds of appeal. I can take most of them quite shortly.

Ms Bazley’s first complaint is that the orders dated 21 August 2014 and 9 September 2014 did not adequately spell out that at the “birth parent adoption hearing” on 29 September 2014 the court would be dealing not merely with the parents’ applications for leave to oppose and the father’s application for contact but also with the adoption applications. There was accordingly, it is said, a failure to comply with rule 14.15. Whatever the phrase “birth parent adoption hearing” might mean to a practitioner familiar with the practice of the family court at Coventry, it would not, Ms Bazley submits, convey anything sufficiently specific to a litigant in person. I agree.

Rule 14.15 must be complied with. If, as here, more than one application is going to be dealt with at the same hearing, the relevant order or notice must spell this out with clarity and precision, setting out in specific terms which applications are listed for hearing. The use of descriptions such as “birth parent adoption hearing” is best avoided unless their meaning is spelt out. Whether in the present case the father suffered any prejudice, and whether if he did it makes any difference, are matters I need not consider further, for there are other grounds on which this appeal must be allowed.

Ms Bazley’s next complaint relates to the sequence in which, she says, Judge Watson addressed the issues. The judgment begins by describing the judge as having before her “two applications in respect of the children”: that is, “first … father’s application for contact with both children and the second the application of both parents for leave to oppose the making of the adoption order.” The judgment then proceeds to deal with those two applications in that order before concluding with two paragraphs, the first relating to M’s circumcision and the second dealing with the making of adoption orders. In essence Ms Bazley voices two criticisms: first, that Judge Watson should have considered the applications for leave to oppose before dealing with the application for contact; second, that approaching matters as she did, Judge Watson gave the impression, not least in the reasons she gave for dismissing the father’s application for contact, that she had closed her mind to the possibility that she might allow his application for leave.

Judge Watson’s explanation for adopting this course was, in part, as she put it, “because it informs my decision in relation to leave to oppose the adoption.” I am not persuaded that Judge Watson had closed her mind – the sequence in which she dealt with the matters in her judgment is equally consistent with other, wholly innocent explanations – but I have to say that I think she was unwise to structure her judgment as she did. The proper starting point was the application under section 47(5). Only once that issue had been determined was it appropriate to move on to the others.

Ms Bazley’s next complaint relates to the way in which Judge Watson dealt with the question of contact. The judge made clear, more than once, that she was treating the application as having been made under section 51A of the 2002 Act. As Ms Bazley correctly points out, section 51A applies only where “the court is making or has made an adoption order”, yet Judge Watson appears to have been considering both contact “at this stage” and “post-adoption contact”. As a separate matter of complaint, Ms Bazley says that Judge Watson’s characterisation of what happened at the final goodbye contact session on 7 June 2014, went beyond the evidence. In her statement, SWSM described that contact as “not a positive experience for either child”, the parents being “visibly distressed” and making “negative comments”. Judge Watson’s finding was that “both children were caused significant emotional harm as a result”. Ms Bazley also points out that the contact supervisor’s contemporaneous note of the contact – prepared and initialled the same day – hardly bears out SWSM’s account.

Though I find Judge Watson’s approach to them troubling, there is once again no need to explore these matters further. There are other reasons why this appeal must be allowed and why the entire matter, including the question of contact, will be dealt with by Judge Cleary afresh.

Ms Bazley raises the question of whether B and M ought to have been joined as parties and represented by a guardian. Since she did not particularly press the appeal on this ground, I say no more about it. The point can, if appropriate, be raised before Judge Cleary.

The next matter forms one of the central parts of Ms Bazley’s criticism of Judge Watson: the judge’s handling of the applications under section 47(5) for leave to oppose the making of adoption orders.

As already noted, section 47(7) requires a parent seeking leave to oppose the making of an adoption order to demonstrate that there has been “a change in circumstances since … the placement order was made.” The meaning of the words “change in circumstances” was explained in In re P (A Child) (Adoption Proceedings) [2007] EWCA Civ 616, [2007] 1 WLR 2556, paras 30-31:

“30

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

31

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

That approach was explicitly endorsed and applied in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, paras 72-73.

Ms Bazley’s attack is two-fold.

First, she submits that Judge Watson mis-stated the relevant test and therefore mis-directed herself in law. She draws attention to the fact that, at various points in her judgment, Judge Watson used the phrases “solid and significant changes”, “significant change”, and “a sea change”. Each of these, she submits, is a higher test than that contemplated by the 2002 Act; indeed, she says, the use of the word “significant” is flatly inconsistent with the decision of this court in In re P. I agree with Ms Bazley’s complaint, though questioning whether it can really have had much impact on the outcome in relation to the parents (for the moment I leave Aunt A on one side), given the totality of the material available to Judge Watson and which she was entitled to accept, as she did.

Secondly, Ms Bazley points out that, having identified Aunt A’s offer to care for B and M as “a significant matter”, Judge Watson made no further reference to Aunt A. It is clear as a matter of law (see In re P, para 31), that Aunt A’s arrival on the scene as a prospective carer for B and M was capable of being a “change in circumstances”. What Judge Watson knew was that Judge Cleary had not ruled out Aunt A as a potential carer for Je; indeed, Judge Cleary had directed a further assessment of Aunt A which, as we have seen, had not been concluded by the date of the hearing before Judge Watson. The father was putting Aunt A forward as a potential carer for B and M, and Aunt A was willing to act in that role. In my judgment, Judge Watson was therefore required to consider whether this was a “change in circumstances”, but she did not do so, not addressing the point in her judgment at all. And the relevant recital in her order, as we have seen, was that “there has been no change in circumstances in either parent” (emphasis added). In my judgment, this is a fatal omission and on this ground alone Judge Watson’s decision in relation to the section 47(5) applications cannot stand. It follows inevitably that the appeal in relation to paragraphs 2 and 3 of Judge Watson’s order must succeed.

In this connection, Ms Bazley challenges Judge Watson’s reliance on Judge Cleary’s decision on 1 September 2014 in relation to Je. It is said that this was not Article 6 compliant because, so it is said, Judge Watson clearly considered that it was not open to her to reach a different conclusion in respect of B and M. There is, in my judgment, no substance in this complaint.

Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.

A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

“Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

“unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.

What Judge Watson said in her judgment on the point was this:

“sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

…

His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.

I turn to Ms Bazley’s final complaint, which forms a central part of this appeal and on which she and Ms McGrath make common cause: the propriety, or as they would have it the impropriety, of the orders made by Judge Watson at the end of the hearing on 29 September 2014.

To set the point in context, it is important to see what Judge Watson said in her judgment before turning to analyse her order.

As I have already described, Judge Watson’s judgment dealt first with the father’s application for contact and then with the application of both parents for leave to oppose the making of the adoption order, before concluding with two paragraphs, the first relating to M’s circumcision and the second dealing with the making of adoption orders.

In the first of those two paragraphs, Judge Watson said this:

“So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

“I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

As approved by Judge Watson the final paragraph reads as follows:

“I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

“upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

THE COURT ORDERS THAT:

…

2

The Court makes an Adoption Order in respect of B to the Applicants to be made 7 days from todays date.

3

The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

…

5

Permission for a Stay of the Orders made today is refused save that the orders will be made in accordance with the timescales set out above.”

Ms Bazley and Ms McGrath make two complaints about this.

The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?

In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.

I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.

Ms Bazley and Ms McGrath’s second complaint relates to the order in relation to B. It is, unhappily, not clear what Judge Watson had in mind, nor indeed is the order as clear as it should have been. In the draft judgment, Judge Watson is recorded as saying that “I will make the adoption order in relation to B”, though in the approved judgment this is qualified by the additional words “in 7 days time.” The order itself says that the court “makes an Adoption Order in respect of B … to be made 7 days from todays date” (emphasis added). The confusion is only compounded by the subsequent events as I have recorded them in paragraph 16 above. There are two problems. First, the application of a mere 7 days’ delay (assuming that the order did not in fact take immediate effect) is not in line with the requirements spelt out in Re W (para 31). Secondly, and much more fundamentally, we are left wholly unclear as to the outcome: has an adoption order in fact been made in relation to B, and if so when? This is not satisfactory. Quite apart from all the other human consequences of such confusion and uncertainty, this is a matter that goes to status. Whenever the court makes an order in relation to status, the order must be pellucid as to what the court is doing and when, for, to take the case of adoption, much can subsequently turn on knowing the precise date when the child was adopted. How, after all, can the adoption be registered unless the date of the relevant order is known? Accordingly, in relation to paragraph 2 of the order the appeal must be allowed on this ground also.

In the circumstances, and given the various defects in the process, I do not see how paragraph 1 of the order can stand.

It was for these reasons that at the end of the hearing of the appeal I agreed with the order allowing the appeal. The entire matter – in which I include every matter dealt with by Judge Watson – must be considered afresh by Judge Cleary. It plainly cannot be remitted for hearing by Judge Watson, there is no need for it to be heard by a judge of the Family Division, and in these circumstances Judge Cleary is obviously best suited to deal with it.

I agree.

I agree.