M'P-P (Children), Re

The issue in this appeal relates, in part, to the relative weight that is to be attached to the range of factors that conveniently travel under the shorthand labels of “status quo” and “family” when determining the welfare of two young children.

The children are a boy, B, born 20^th September 2012, therefore now aged two and a half years, and a girl, E, born 17^th November 2013, and therefore aged one and a half years. From the very earliest stages of their lives, in B’s case at the age of two months and in E’s case at one day, they have been cared for by a single local authority foster carer, Y, who wishes to become their adoptive parent, or, at the very least, provide long term care for them within some alternative legal structure short of adoption. Y’s position at the first instance hearing conducted by HHJ Atkins in December 2014 was supported by the local authority and the Children’s Guardian. It was, however, opposed by the children’s parents and a paternal aunt, J, who put herself forward as an alternative long term carer for both children under a special guardianship order. In the event HHJ Atkins concluded that the children should move to live with their paternal aunt, J and it is against that determination that the foster carer, Y, now appeals. On the direction of Ryder LJ, Y’s application for permission to appeal is listed before the full court with the appeal to follow if permission is granted.

Although I have explained the relative positions of the two candidates for the children’s care, the procedural context within which the issues came before the judge was more complicated. In relation to the eldest child, B, he had been the subject of care proceedings from the age of two months, and had been placed with Y under interim care orders from that time. On 3^rd September 2013 B was made the subject of a full care order and an order authorising the local authority to place him for adoption. On 24^th July 2014 B’s placement with Y formally became a placement for adoption. Y issued her application for an adoption order with respect to B on 27^th October 2014. Subsequently the children’s father applied for leave to oppose the adoption on the basis that B should move to live with his sister, J. All parties agreed that the father should have leave to oppose adoption and, in consequence of Adoption and Children Act 2002, s 47(2), the adoption hearing before HHJ Atkins required a fresh consideration of the question of whether or not the father’s consent to adoption should be dispensed with.

With respect to E the local authority applied to the judge for a full care order and a placement for adoption order, their plan being that, if a placement order were made, her foster carer, Y, would in due course issue an adoption application with respect to her.

The paternal aunt, J, sought a special guardianship order with respect to both children. The children’s father accepted that he could not provide a home for either child and, as I have indicated, he supported the applications made by his sister. It is sadly the case that the children’s mother has for a long time suffered from mental ill health. Despite those disabilities, and as an expression of her understandable strong maternal love for her children, she wanted the judge to agree to the youngest child, E, being placed in her care. However, if that was not possible, she, too, supported both children going to live with the paternal aunt.

There were a number of additional complicating factors. Firstly, the aunt, J, had played absolutely no part in the children’s lives and, indeed, had only met them on one occasion, a supervised contact visit prior to the hearing. Secondly the children’s father was born in Rwanda, their mother was born in the Congo as was the paternal aunt, J, whereas the foster carer, Y, is a lady of black British Guyanese heritage. Thirdly, the aunt lives in Belgium and as a result a move to live with her would involve a radical change in the children’s home environment and the predominant language. Fourthly, the judge was required to consider whether the local authority decision making with respect to placing B formally with Y for adoption was flawed; a factor which raised potential procedural difficulties for the adoption application proceeding at that hearing if the judge had concluded that adoption was in B’s best interests. Fifthly the position of J as a potential candidate to care for both children had only been clarified a matter of days prior to the start of the final hearing. That this was so was due, in part, to the failure of the local authority to identify to J that it would provide continuing financial support to her if she were granted a special guardianship order. Initially J had only been assessed as a candidate to care for the youngest child, E. The independent social worker, Mr H, who conducted the assessment of J initially, therefore, only recommended her in that capacity. Subsequently, once the question of finances had been clarified, he re-visited his assessment and produced a final report, shortly before the hearing, which concluded that J would be able to care for and meet the needs of both children.

A further complicating factor is that the mother has given birth to a total of eight children; B and E’s father is the father of the younger three of the other five children. All six of the older children are subject to care orders made in the course of earlier proceedings before the same judge. The elder five, whose ages run from 8 up to 15, are in long-term foster placements and the youngest child, a boy, C, has been adopted. The children who are the subject of these proceedings, B and E, have always had some regular contact with these older siblings and, even if Y adopted them, the plan was for some face-to-face contact with the siblings to continue indefinitely. J, too, was offering continuing direct contact with the siblings, albeit that the distance from Belgium to England would necessarily reduce the frequency of visits.

In a clear and carefully constructed judgment, HHJ Atkins reviewed the evidence, correctly identified the relevant legal principles and the factors that he considered to be key before concluding with an analysis which all parties, rightly, regard as being entirely in tune with the approach described in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146; [2014] 1 WLR 563.

Whilst I do not wish to over-burden this judgment with extensive quotation from the judge’s judgment, it is necessary to offer a detailed summary and to set out a number of central passages in order to establish the context for this appeal.

In relation to Mrs SS, who had been the allocated social worker for a considerable time, the judge recorded her view ‘that Y had facilitated inter-sibling contact’ and that she considered that Y ‘was exceptionally committed to sibling contact’. Y was also willing to facilitate continuing direct contact with the parents even after adoption which, although not a requirement of the local authority, was a welcome factor in the social worker’s opinion.

The social worker’s evidence with regard to J was necessarily more limited given the geographical distance and because of a failure, which the judge felt driven to find, on the part of the social services to engage fully with J once she had offered herself as a potential carer. During the hearing, however, the local authority confirmed that it would offer support to J if the court found that the children should move to live with her and a transition plan was produced setting out the practical steps that the local authority would facilitate if a move to Belgium were ordered.

The court received both written and oral evidence from Mr H, an independent social worker commissioned to assess J’s capacity to provide a home for E and, ultimately, for both children. Mr H was plainly impressed by J, whom he regarded as resourceful and pragmatic, and by her capacity to care for the children and to meet their various needs, including, importantly, continuing contact with their siblings and other relations in England. On the basis of Mr H’s evidence, the judge concluded that J’s plan, which included moving house, was ‘practical on a financial basis’.

Mr H was clear that his contribution to the proceedings, important though it was, was limited to his assessment of J’s capacity to provide care for the children. In commending her, he was not making a comparison with Y, whom he had not assessed, and he was not offering an overall recommendation to the court concerning the children’s welfare.

The judge heard evidence directly from J. His summary of her testimony shows that he was impressed by her approach to the practical and financial changes that would be required in her life, to the language difficulties that the children would face and to continuing relationships with the children’s relatives.

The judge’s summary of Y’s evidence includes a quotation from her description of the children: ‘We are a family. We have an extended loving family in which B and E are central and are cherished. They are loved and adored. I believe they would be devastated to be removed from us.’ In her evidence Y confirmed her commitment to continued contact for the children with their siblings and parents.

Having summarised the content of their evidence, the judge set out the following observations about their evidence at paragraphs 67 and 68 of his judgment:

Finally, in terms of his summary of the evidence, the judge turned to that of the Children’s Guardian, whose recommendation was for the children to be adopted by Y, in these terms:

Following his resume of the evidence, the judge moved on to conduct an analysis within the structure of the welfare checklists in Children Act 1989 and ACA 2002. He, rightly, considered that the requirement of ACA 2002, s 1(2) to afford paramount consideration to the child’s welfare ‘throughout his life’ was the requirement governing this decision.

As will become more apparent in the later stages of this judgment, despite the obvious care with which he approached this difficult decision, I consider that the judge, in part, fell into error in the manner in which he deployed the two separate checklists in the 1989 and 2002 Acts. The judge’s approach was to take the letter attributed to each individual sub-paragraph in the respective checklists as a unifying factor and consider the substance of the checklist items that share the same sub-paragraph letter within a single paragraph of his judgment. In some respects, as a result of this approach, key factors that should have been given prominent and separate consideration in the welfare analysis came to ‘fall between the two stools’ of these similar but distinct checklists; this is particularly so with respect to items (c) and (f) on each checklist which deal, as between the two statutes, with very different matters.

Before turning to (c) and (f), the judge dealt shortly with (a), ‘wishes and feelings’, in the light of the very young age of these children and then considered the children’s ‘needs’ under item (b) in one paragraph of the judgment. The bulk of that paragraph deals with the potential for the children to develop mental health difficulties, which the judge considered either of the candidates for their care could accommodate satisfactorily. In relation to their general needs, the judge simply says: ‘the needs of the children are of course the needs of any child of that age: they both need a stable, loving and supportive home where they are kept safe and where their needs are met.’

The first of the two sections where the judge’s decision to merge consideration of the items in the 1989 and 2002 checklists into one may have caused him to fall into error arises with respect to item (c). In CA 1989, s 1(3)(c), the court must have particular regard to:

Pausing there, as I shall consider in more detail at a later stage, in that paragraph, despite listing a number of changes that the children would experience if they moved to Belgium to live with J, and despite noting that the secure nature of their current attachments to Y and her family may assist them in coping with that move, the judge does not give any consideration to the factor that is required by item (c) in the 1989 checklist, namely ‘the likely effect on the child’ of those changes.

Items (d) and (e), relating respectively to a child’s characteristics and any harm he has suffered or is at risk of suffering are effectively in identical terms in the 1989 and 2002 Acts. The judge rightly, in the context of item (d), stresses the right to family life as ‘a very important factor in this case’.

Item (f) is the second location at which the judge’s decision to merge consideration of the two checklists may have led him into error. In CA 1989, s 1(3)(f) requires regard to be had to:

At paragraphs 85 to 87, the judge explained why, despite the earnest wish of the children’s mother to care for E, placement with either parent was not a viable option. In relation to the central issue in this case, namely the choice between a home with Y or with J, the judge’s consideration of item (f), under both the 1989 and 2002 checklists, sits entirely within the short compass of paragraph 88:

To pause again and take stock of the judge’s ‘item (f)’ analysis in relation to J and Y, paragraph 88 is an entirely justified analysis of the capacity of each of these two individuals to meet the needs of the children, but it goes no further. It is, therefore, conducted solely within the confines of CA 1989, s 1(3)(f), and does not relate at all to ACA 2002, s 1(4)(f). What ‘falls between the two stools’ at this point is any consideration of ‘the relationship’ which each child has with J or with Y, together with the ‘likelihood of any such relationship continuing’ and, importantly, ‘the value to the child of its doing so’. As with the judge’s consideration of item (c), this approach means that the judge, within his welfare checklist analysis, does not consider the effect on each of the children of breaking the strong and positive attachment that they each have with Y and her family.

Having conducted an analysis using the welfare checklist structure, in the final section of the judgment, between paragraphs 89 and 106 the judge conducts an extensive ‘Re B-S’ evaluation by listing the pros and cons of placement with J followed by a similar exercise relating to placement with Y. To summarise, with respect to J, he lists the following positive features:

The judge then listed the following potential difficulties arising from placement with J:

In relation to the first difficulty identified by the judge, namely the ‘very significant change’, it is of note that each of the changes identified relates either to the practical or cultural environment of the children; there is no mention at all of the fact that they will no longer be cared for by the only primary carer they have known and will break the strong bond of attachment that they have with her. In looking at the changes that he does identify the judge observes:

With regard to Y the judge listed a number of important factors in her favour:

The judge then lists the following problems with respect to continued placement with Y:

Having listed the positives and negatives of each of the alternative candidates to care for the children, the judge announced his conclusion in favour of J and set out his primary reasons for making that choice at paragraph 105 as follows:

After congratulating and thanking Y for the care that she had given to the children, the judge explained, at paragraph 107, why he had reached a conclusion that differed from the recommendation of the Children’s Guardian. In short, he explained that he afforded greater weight to the children’s welfare throughout their lives and less weight to the ‘short term difficulties’, which were manageable. When the case had only involved a proposal for the youngest child, E, to go to live with J, the guardian had regarded the decision as ‘finely balanced’; now that both children can go to J, the judge no longer regarded it as finely balanced. Finally, the judge considered his long involvement with all of the children of this family, and his ability to hear all the evidence, gave him an advantage over the guardian.

The judge therefore revoked the care order and placement for adoption order with respect to B and indicated his intention to make special guardianship orders in favour of J in relation to both children.

Y’s appeal against the judge’s decision is argued before this court on a number of grounds by her counsel, Mr Malcolm Macdonald. The first two grounds are of a legal/technical nature and, for my part, they do not go to the heart of the issues in the case. In summary, they were:

With respect to the first ground relating to joining the siblings as respondents, this point was not raised in any manner before the judge by the Appellant’s previous counsel at first instance and appears for the first time in the Grounds of Appeal. Article 12(1) of the UNCRC establishes that a State must ensure that a child who is capable of expressing his or her own views has the right to express those views freely on ‘all matters affecting the child’. Art 12(2) provides that a child shall have an ‘opportunity to be heard’ in any judicial or administrative proceedings ‘affecting the child’.

On the basis that this point was simply not raised before the judge, I do not consider that it is right that it is considered as a ground of appeal. In any event, and without expressing a concluded view on the topic, I have grave doubts as to the validity of the argument. For one reason, although the decision of the court may have some indirect impact upon the life of the older siblings, I would regard Art 12 as being focussed upon a child who is directly the subject of a decision or of court proceedings, rather than only the sibling of such a child. In any event, the right to ‘be heard’ in proceedings does not carry with it an automatic right to be a full party to those proceedings. Finally, the point is raised on behalf of the appellant foster mother and not on behalf of the siblings themselves.

With respect to whether or not the judge was in error with regard to the Art 8 rights of the aunt, although the judge did hold that both Y and J had Art 8 rights, as did the children, he expressly distanced himself from attributing any weight to this aspect. Instead he sought to determine the case solely by reference to the welfare of the two children. The strength of the appellant’s argument on this point is therefore very weak even at its high point, which is to argue that the aunt did not have Art 8 rights and that therefore an enhanced status in the balancing exercise should have been afforded to the foster carer who did.

Mr Macdonald’s other arguments are more widely and more conventionally based asserting in one respect or another that the judge did, or did not, attribute appropriate weight to one factor or another. Although it is right to record that the emphasis that I have given to the judge’s approach to the ‘status quo’ argument and the attachment that the children have with Y only achieved prominence in the appellant’s case during oral submissions and in response to observations from the court, Mr MacDonald’s skeleton argument did flag the issue up in a striking and effective manner by posing the question of what the welfare outcome would be if both Y and J were members of the children’s family.

Ground 9 of the Appellant’s Grounds raises a discrete issue and asserts that the judge ‘failed to consider other options for permanence for the children with the Appellant other than adoption, such as Special Guardianship’.

The paternal aunt, J, whose case was presented before this court by Mr Charles Geekie QC, as it was before the judge, opposes the appeal. Mr Geekie makes an important preliminary point by stressing the extent of HHJ Atkins’ knowledge of this family as a result of presiding over the earlier proceedings relating to the older siblings and B, and as a result of conducting the preliminary hearings in the present applications. A further, and equally significant, preliminary point is made with respect to the central arguments of the Appellant concern the weight attributed by the judge to particular factors; Mr Geekie draws attention to the well known authorities of G v G (Minors: Custody Appeal) [1985] 1 WLR 647 and Piglowska v Piglowska [1999] 1 WLR 1360 which are now to be read with Re B (A Child) [2013] UKSC 33. In short Mr Geekie submits that, approached as it should be on the basis of these authorities, the appeal should not succeed and, indeed, permission to appeal should not be granted.

On the discrete point of the absence of consideration of an order less intrusive than adoption if the children remained with the foster carer, Mr Geekie submits that the judge conducted a meticulous exercise. In the event he considered that the children’s welfare required a move to the aunt, irrespective of the status of placement with the foster carer.

In response to our questioning of the role of the status quo in this case, Mr Geekie submitted that that issue fell to be assessed against the emphasis that has been placed on placement in the family in recent cases. He also, rightly, drew attention to the danger of a situation becoming established in the home of a temporary foster care, under a series of interim care orders, then being held up as a newly established ‘status quo’ against which any placement with a family member would have to be compared. In the present case, however, it is, in my view, important to note that, with respect to B at least, the character of his relationship with Y, at least so far as he and Y were concerned, will have moved on beyond temporary foster care following what Y will have regarded as his valid placement with her for adoption (not withstanding HHJ Atkins’ subsequent finding as to the deficiencies in the local authority decision making process).

On the appeal generally, Mr Geekie submitted that the question was whether it was open to the judge to conclude that it was proportionate to make orders providing for the children to move to live with J. He stressed the apparently careful and balanced survey of the evidence conducted by the judge, who had seen the witnesses and reached a decision which was within the bounds of his discretion.

The appeal is also opposed by the children’s father and mother. The local authority and the Children’s Guardian did not seek to challenge the decision of HHJ Atkins before this court, not withstanding their position at first instance.

The decision called for in the present case was a difficult one, requiring a choice to be made between two potential carers, one a family member unknown to the children and the other a foster carer/prospective adopter with whom they had a strong and beneficial attachment. The determination of this appeal is, likewise, not a straightforward matter. As will become plain, I have felt driven to hold that the appeal should be allowed, not on the basis that the judge was ‘wrong’ in his decision, but on other grounds. It must follow that the applications must now be re-heard. I therefore intend to be careful not to express any view as to the eventual outcome of that rehearing; to do so would not only be impertinent but also extremely unwise as this court has not been made privy to all of the evidence that may be called in that hearing.

At the beginning of this judgment I indicated that the appeal, in part, raises the question of the relative weight that is to be attached to the issues of ‘status quo’ and ‘family’ when they appear to be in opposition to each other in proceedings relating to a child. In recent times the importance of a local authority and the court giving full weight to the importance of a ‘family’ placement, unless this is established to be so contrary to a child’s welfare that a long-term placement in public care or adoption is necessary, has been stressed in a range of decisions, of which Re B and Re B-S are the most prominent. Less has been said in the recently reported cases about the weight to be afforded to the bundle of factors that family lawyers have historically referred to as ‘the status quo argument’. That this is so may, in part, be a consequence of the status quo simply not being a factor in many public law cases where, at the time of the final hearing, the child is, on any view, in a home that is temporary; the dispute is normally about the home to which the child is to move (be that in the family or with strangers) with no option to stay where he is.

The validity of the status quo argument is certainly well established in the pre-CA 1989 authorities. In D v M (Minor: Custody Appeal) [1982] 3 All ER 897, Ormrod LJ said:

In more recent times the prescient observations of Ormrod LJ, which were made at a time when the early work of John Bowlby and others on ‘Attachment Theory’ was available, have been borne out by the enhanced understanding of the neurological development of a young child’s brain that has become available, particularly, during the past decade. As a result, the importance of a child’s attachment to his or her primary care giver is now underpinned by knowledge of the underlying neurobiological processes at work in the developing brain of a baby or toddler.

In the context of ‘attachment theory’, the wording of ACA 2002, s 1(4)(f), which places emphasis upon the ‘value’ of a ‘relationship’ that the child may have with a relevant person, is particularly important. The circumstances that may contribute to what amounts to a child’s ‘status quo’ can include a whole range of factors, many of which will be practically based, but within that range the significance for the child of any particular relationship is likely to be a highly salient factor. The focus within CA 1989, s 1(3)(c) is upon the ‘likely effect on’ the child of any change. The focus in ACA 2002, s 1(4)(f)(i) is upon ‘the value to the child’ of any particular relationship continuing.

It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in any case will inevitably be determined by the underlying evidence. In any event, for reasons to which I have already adverted, it is not necessary to do so in this case as, unfortunately, the judge does not appear to have engaged in any real way with the effect on the children of moving them from the care of their primary, and only, attachment figure or with the value to them of maintaining that relationship.

In his summary of the evidence HHJ Atkins does afford recognition to the nature of the attachment that has been established between Y and both children. He quotes, apparently verbatim, from Y’s evidence:

In the context of ‘change’, the changes listed by the judge are all practical, environmental or cultural, whereas, from the focus of a two and a half year old child the most important change is likely to be that his ‘mother’ has dropped out of his life. That is so with respect to the changes listed during the checklist analysis and also later during consideration of the positives and negatives of each option (see paragraph 26(a) above). The welfare checklist requires regard to be had to the effect on the child of such a change and, I am afraid, there is no indication in the judgment that any regard was had to that factor. In like manner, as I have already explained, there is no consideration of the ‘value’ of the relationship with Y during the judge’s analysis under ACA 2002, s 1(4)(f).

Conversely, when the judge came to list the positive features with respect to Y, the fact that the children had established a strong and entirely beneficial primary attachment to her is not mentioned when it should surely have been at the top of the list; the fact that they were attached to her and she was not simply their current foster carer was, on her side of the case, what the case was all about, yet it does not feature as a factor. The judge’s reference to the establishment of ‘a family life together’ which is entitled to ‘proper and full weight’ has the ring of an argument based upon rights rather than, more importantly in the context of the children’s welfare, their emotional reality.

For the reasons that I have given, I am afraid that I regard that judge’s analysis to be flawed in a fundamental manner in that he failed to give any regard to the effect on the children of removing them from the care of their primary attachment figure, when it was common ground that this was a strong and entirely positive relationship, and, likewise, failed to attribute any value, from the children’s perspective, to the continuation of that relationship. The judge may have inadvertently led himself into this error by unwisely seeking to elide the use of the two distinct welfare checklists in CA 1989 and ACA 2002, but I fear that the error runs more deeply through the judicial evaluation than that. This important factor simply does not surface during the judge’s analysis when, as it seems to me, it was one of the two key, and opposing, points in the case; this, at bottom, was a choice between the life that the children had firmly established with an individual who was not related to them, on the one hand, and future placement with a close family member who had only met them on one occasion and who lived in circumstances very different from those with which they were familiar.

If my lords agree, the result of my conclusion is that the Appellant is to have permission to appeal and her appeal succeeds with the result that these applications will now have to be re-heard before a different judge. This court will wish to give basic directions for a speedy case management hearing before the judge who is now to take these proceedings forward. Subject to any submissions that the parties may wish to make, the judge’s orders should be set aside with the result that, pending the re-hearing, the final care order and placement for adoption order in B’s case will remain in force, together with the interim care order with respect to E.

As the case is to be reheard, I would, as a postscript, offer a further observation on a point which, of itself, was not influential in my decision, but which, in the event of a rehearing, may merit consideration. It relates to the absence from the judgment of any consideration of whether, and if so to what extent, the welfare interests of B and E may diverge. No party suggests that the two children should be separated and I am certainly not inviting the opening up of separation as an option. There may however be differences between the children’s needs. B has been with Y for longer, he is older and may be at a more vulnerable age in the context of losing his primary attachment to Y. In addition the relationship between B and Y may have developed more fully as a result of the different legal status that it has attracted when compared to Y’s relationship with E. The judge seems to have regarded the ‘finely balanced’ case, when only E was considered as a candidate to go to live with J, as changing to a more clearly defined outcome once it was plain that J had capacity to care for both children, thereby removing the prospect of separating B and E if E were to move to J’s care. The court is, however, dealing with two individual children; whilst it may be a given that they should not be separated, they are not a single entity. In terms of moving from Y’s care to be brought up by J, what is the best outcome for one may not be the best outcome for the other and a choice may fall to be made.

What I have said in the above ‘postscript’ may go to make an already difficult decision more difficult, but the legal imperative is plain that the decision for B must be made with B’s welfare as the paramount consideration and the decision for E must be made with her welfare as the paramount consideration.

I agree.

I also agree.