D (Children), Re

This matter was listed as an application for permission to appeal with the appeal itself scheduled to follow if permission were to be granted. In view of the arguments advanced, I would grant permission and this judgment will therefore deal with the substance of the appeal.

The order which is challenged is an order made by HHJ Williams on 20 March 2015. The judge had before her an application under section 47(5) of the Adoption and Children Act 2002 (“the Act”) by the mother of two children for leave to oppose the making of adoption orders in relation to them. She dismissed the application and it is against this that the mother seeks to appeal. The father of both children was also a party to the proceedings before Judge Williams and appeared in person; he is aware of the appeal but did not attend the hearing. The other parties to the appeal are the prospective adopters of the children, Mr and Mrs X, and the local authority. We are grateful to counsel for all the parties for the assistance that they gave us in written and oral submissions.

The two children concerned are D (born in August 2009, so nearly 6 years old) and A (born in December 2010, so 4 ½ years old). The mother’s application needs to be set in the context of the history of the children so far. They have a number of siblings and half siblings, none of whom are in the care of the parents. All are placed with relatives or have been adopted.

In February 2013, HHJ Brasse made care and placement orders in relation to D and A. It is unnecessary for the purposes of this judgment to go into the reasons for this because the mother did not wish to oppose the making of an adoption order upon the basis that she could care for the children herself. Her proposed opposition was upon the basis that a paternal aunt and uncle (Mr and Mrs M) could care for them and that they should be placed there rather than adopted.

The original care proceedings were commenced in December 2011. Mr and Mrs M, who live in Jamaica, were put forward as possible carers for the children but attempts to get in contact with them were unsuccessful. For example, emails sent to Mrs M by the local authority social worker in November 2012 received no response. Accordingly, when Judge Brasse made the care and placement orders in February 2013, she did so on the basis that there were no alternative placements for the children within the family.

In July 2013, Mrs M emailed the local authority asking for an update on the process in relation to the children, the email being prefaced with the comment that her brother (the father) was finally admitting to her that the children “are almost out of his hands”. The local authority responded, giving Mrs M the details of the current social worker and informing her that the children were in foster care and the plan was for them to be adopted. It seems that Mr and Mrs M then stated that they wished to be considered as carers for the children and a telephone “viability” assessment was carried out. The local authority did not consider that the possibility of a placement with the aunt and uncle should be taken any further. They set out the reasons for this in an email of 10 September 2013 to Mrs M. In this, they explained that the children had had a number of changes in their young lives and needed a high level of support and care and a home where they could have one to one attention. They referred to certain problems with D’s behaviour for which he was having particular support. Mr and Mrs M have two children of their own, one then a very young baby and the other 7 years old. The local authority understood that Mrs M was intending to return to work following her maternity leave, using a nanny to look after the children. They took the view that given these circumstances, a placement with Mr and Mrs M would not meet the children’s needs. The social worker, who has been the allocated social worker throughout since 2013, concluded her email with an invitation to Mrs M to let her know if she wished to discuss this further. There was no response to that invitation from Mrs M.

On 23 September 2013, the mother had another baby (B) who was placed in foster care on an interim care order. Mr and Mrs M were assessed as special guardians for B. The allocated social worker travelled to Jamaica for this purpose. The assessment was positive and B was placed with Mr and Mrs M in October 2014. It does not appear that anything was said by Mr and Mrs M during the assessment to suggest that they wished to revive the idea of caring for D and A, although they were told that prospective adopters were being put forward for the children. Equally, following the placement of B with Mr and Mrs M, there was weekly telephone and email contact between them and social services but they did not ask for any update about the children or indeed raise any questions whatsoever about them.

In October 2014, following three weeks of preparatory work, leading up to a period of introduction, D and A were placed with Mr and Mrs X for adoption. In 2009, Mr and Mrs X had adopted the children’s half sibling, P, so this placement united the children with a part of their family. From the start, the children referred to the Xs as ‘mum’ and ‘dad’, readily settling with them and developing a bond with P as their sibling.

Mr and Mrs X are British citizens but Mr X is currently working in the United States. They came over, with P, to London for the introductory period and the initial stages of the placement, with Mr X travelling between the countries to maintain his employment. At the end of December 2014, the adoption application was made. The family then travelled back to the USA together under the visa waiver scheme. They were able to stay there together on this basis for up to 90 days. Thereafter, it seems that Mrs X and the children went to Canada for a period. The next step in relation to the immigration formalities in the USA in relation to D and A needed to be an application for ‘humanitarian parole’ which would enable the children to enter the USA whilst an application was made to add them to Mr X’s green card. Such an application, however, could only be made from outside the USA and once the adoption orders were made in favour of Mr and Mrs X. Staying in Canada was more practical than returning to the UK.

Judge Brasse gave directions in the adoption application on 16 January 2015. On 13 February 2015, the mother commenced her application for leave to oppose the adoption. The application form is not available. A statement made by the mother, apparently in support of the application, was provided to us but it did not seem to be entirely clear whether it did in truth relate to the application. In it, the mother said she was seeking an amendment of the care orders so that Mr and Mrs M could become the children’s special guardians.

On 25 February 2015, the case came before Judge Williams for directions. It was clear that further information about Mr and Mrs M was required and this was to be sought. From what the social worker learned from Mrs M in a telephone conversation on 5 March 2015, she did not know that she had been put forward as a carer at the 25 February 2015 hearing and she had, in fact, not recently spoken to either of the parents. She said she had had an email from the parents’ solicitor but, not understanding the content, she had ignored it. Mrs M said that she would not want to adopt the children but would consider special guardianship. She said that her concern about the children not having contact with their birth parents had been a factor behind her considering putting herself forward. The social worker told her that the prospective adopters were willing to maintain contact with the birth parents and other siblings who had been adopted. Mrs M said, according to the social worker, that “this information changed her view and she was happy about that”. She went on to say that financially they would not be able to manage to care for the children and she was worried about that. She also said there was not space in the house at the present time and that although they were planning an extension, the work would not start until at least 2016.

The social worker encouraged Mrs M to respond to the solicitors and when the matter came back before Judge Williams for hearing on 20 March 2015, a letter was available from Mrs M dated 10 March 2015. In it, Mrs M referred to them having been “turned down” by the local authority earlier but still maintaining that they are able to give the children all the love and attention they require. They expressed their disagreement with the proposed adoption and their wish to be guardians for D and A.

The judge set out the law in relation to section 47(5) applications in conventional terms, referring to Re B-S (Adoption: Application of section 37(5)) [2013] EWCA Civ 1146 and In the matter of W (a child); In the matter of H (children) [2013] EWCA Civ 1177 as well as to a decision of Holman J, A and B v Rotherham MBC [2014] EWFC 47 to which she had been referred by counsel for the mother on the basis that there were factual parallels between that case and the mother’s case. Nothing that I say in this judgment is intended to change the law as stated in Re B-S and Re W and H.

The judge’s approach to the law is not criticised in the grounds of appeal, which concentrate upon the weight that she gave to the various factors that were material to her decision. Nevertheless, it is important to read the judgment bearing in mind that the judge had been invited by counsel, as she said in the second half of §11, to consider not a two stage test as set out in the authorities (has there been a change of circumstances and, if so, should leave to oppose be granted) but a three stage test comprised of the following elements:

It is clear from the authorities that these elements must indeed all be considered in applying the two stage test but, in practice, they may be significantly intertwined. The judge will be involved, along the way, in looking at various aspects of the child’s welfare.

As the President said in Re W; Re H (supra):

“21.

In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change of circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity.”

I explained in Re L (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1481 (see particularly §45) how the judge hearing the leave application, and considering a parent’s prospects of success for that purpose, has to look into the future and do the best he can to forecast what decision the judge hearing the adoption application, who will have the child’s welfare throughout his life as his paramount consideration, is going to make. In this way, the factors that are ultimately going to be relevant to the decision whether or not to grant the adoption order are therefore also material at the leave stage.

If the parent does have solid grounds for seeking leave, the judge has to consider whether leave should nonetheless be refused and this involves a consideration of whether the child’s welfare really does necessitate such a course. Here the concentration is on the impact on the child of there being an opposed adoption application.

The judge accepted (§17) that there had been a change of circumstances in that Mr and Mrs M were now putting themselves forward as carers, albeit extremely late in the day. She therefore proceeded to consider whether leave to oppose should be given. She first considered and evaluated the parents’ ultimate prospects of success in opposing adoption if leave were to be given, asking herself whether they had solidity. Her consideration at this point appears to have been confined to the specific question of whether Mr and Mrs M represented a solid prospect as carers for the children rather than taking a broader based approach to the prospects of success. She said (§18) that there was some doubt about this, citing Mrs M’s doubts a) about her ability to manage financially (although acknowledging that she might have assistance from the local authority), and b) as to whether she had sufficient accommodation for two more children (acknowledging that that might be addressed by her property being extended as proposed). She said that there was “some solidity” because B had been placed with Mr and Mrs M but she observed that he was a different child without the behavioural problems of D, he was placed with his aunt as a baby, and he was a single child, concluding that he “is a completely different prospect in terms of caring for him as a young child and including him in the family”.

I am not sure that the judge definitively determined in §18 whether she was satisfied that the prospects of success were sufficient but she did then say in the following paragraph that the next stage was to consider the impact on the children if leave to oppose were to be given.

In the section of her judgment from §19 onwards, she included quite a wide survey of the various welfare considerations in the case. This was obviously germane to her consideration of the impact on the children of opposed adoption proceedings, but the material she included was also very relevant to the question of the mother’s prospects of success in opposing the adoption application.

The judge said that she had taken “something of a balance sheet approach to the welfare considerations”. On the one hand, the aunt and uncle offered a potential family placement where the children would also be with B and where they would not lose their legal ties with their birth family. They had been assessed as suitable to care for B although, the judge reminded herself, he was a different child with different needs. On the other hand, the children had been placed in October 2014 with Mr and Mrs X after preparation for what had been termed their “forever family”. This was their fourth placement. They are “bright children who have understood the situation within their own abilities at their respective ages and have taken on board that this is their new family for life”. They consider Mr and Mrs X to be their new father and mother and immediately treated them as such. The judge commented that this was also a family placement because their half-sister, P, is there. She observed that it is generally accepted that relationships with siblings are the most enduring in terms of relationships throughout life, and that Mr and Mrs X have already shown their commitment to maintaining P’s links with her siblings and half-siblings and say they intend to do the same for these children. She accepted the local authority’s submission that if the children were moved from their adoptive placement, the therapy they had received to address the difficulties they had had in their lives so far would have to be unpicked, which would cause damage to them and inevitable loss, possibly permanent, of trust in parenting figures.

In considering the disruption that the children would suffer if leave were to be granted, the judge appreciated that the mother’s submission was that it would be short term and manageable and not an overriding consideration. She herself classed it as “significant short term disruption”. She described the immigration difficulties there would be for Mr and Mrs X in that the children had to leave the USA at the end of March and would not be able to live there pending a resolution of the adoption question whereas at least Mr X and P had to return to the USA for work and school purposes. The judge had been addressed about the possibility of the children having to come back to the UK and be placed in foster care again whilst opposed adoption proceedings continued and further assessments were carried out. She dealt with that cautiously saying it was “a real concern but it is not known whether that would actually be the case” (§23).

Following her review of the circumstances, the judge said that she had considered §§21 and 22 of Re W; Re H. I have quoted §21 already. §22 notes that it is likely to be unusual for a court to conclude that leave to oppose should be refused on the basis of the effect on the child of opposed proceedings. The President cites in it what he said at §74(iii) of Re B-S to the effect that once the judge has got to the point of concluding that there has been a change of circumstances and there are solid grounds for seeking leave, he must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave and must keep at the forefront of his mind that adoption is only permissible if nothing else will do.

The judge concluded her judgment with the dismissal of the application for leave to oppose, summarising her reasoning as follows:

“25.

I have to conclude that in this case an order for adoption is required on welfare grounds. Taking into account all the circumstances and in particular a high probability of further and possibly irreversible damage to these children in view of their history so far and the situation in which they are now placed if leave to oppose is granted. Their welfare needs outweigh the possibility of a placement with their aunt in Jamaica with all the likely concomitant short term and longer term damage and harm to them in these circumstances which could not be avoided in my view”

Ground 1 of the grounds of appeal is that the judge gave disproportionate weight to the children’s visa difficulties. It is submitted that the few weeks, or at most months, of disruption that this would cause during the adoption proceedings had to be balanced against the potential lifelong benefit of a placement with the aunt and the continuation of the children’s relationship with the parents.

Ground 2 criticises the judge for giving weight to the therapeutic and psychological consequences for the children of not remaining in their adoptive placement. The argument is that this was a matter for consideration in the context of a full opposed adoption application rather than at the preliminary leave stage, and that, in order to form a view about it, the judge needed expert and/or social work evidence. This was not sufficiently available to her, so the argument goes, and what was required was a focussed assessment of matters such as the ability of Mr and Mrs M to care for the children and to address their particular needs, the ability of the children to adapt to the move, and the availability of therapeutic resources to help with any disturbance caused by it.

Ground 3 criticises the judge for giving too little weight to the potential benefit of a family placement and too much to other factors, namely the fact of placement with the adopters, the passage of time, the short term consequences of giving leave, and the effect of leave on the adopters.

Ground 4 complains that the judge’s order breached the children’s and the parents’ Article 6 and Article 8 rights.

I am not persuaded that the judge was wrong to refuse leave to oppose the adoption.

A fundamental flaw in the argument advanced on behalf of the mother is its failure to acknowledge that the placement with Mr and Mrs X is itself also a placement with one of the children’s relatives, namely their half-sister P. Ground 3 of the grounds of appeal loses its force once this is recognised and it is a feature which distinguishes the case entirely from A v Rotherham MBC. A move to the uncle and aunt, if it materialised after the further investigation that would be required, would enable them to live with three family members (Mr and Mrs M, and B) and to preserve their legal links with their parents, but at the expense of their day to day relationship with P, with whom they are already growing accustomed to living. Furthermore, it is likely that P will not be the only relative with whom the children have contact; Mr and Mrs X have already demonstrated their commitment to P keeping in touch with relatives and are said to be intent on doing the same for these children. Counsel for the mother differentiated between the placement with Mr and Mrs M and Mr and Mrs X on the basis that, in the former case, the carers are relatives whereas in the latter, they are not. His approach was, it seemed to me, that this meant that the placement with Mr and Mrs X really should not be treated as a family placement at all. I accept that, in contrast to a placement with Mr and Mrs M, adoption by Mr and Mrs X will sever the legal ties with the biological family, but this does not mean, in my view, that the adoptive placement should not be characterised as a family placement, or should be characterised as a fundamentally inferior family placement to a placement with Mr and Mrs M. To approach things otherwise would be to treat the children’s developing relationship with P as less important than the relationship that they might form with different relatives, namely Mr and Mrs M, and B. That is not a tenable approach.

Turning to ground 2 of the grounds of appeal, I am not persuaded that, on the facts of this case, the judge was wrong to form a view at this stage in the proceedings and on the material before her as to the challenges that Mr and Mrs M would face in starting now to look after the children and as to the problems that a move to Mr and Mrs M would be likely to cause for the children. One must have in mind how a section 47(5) application fits in the scheme of things and the nature of such an application. Here, it followed upon care and placement order proceedings in which there was a full investigation of the parents’ circumstances and an opportunity, not taken up, for Mr and Mrs M to put themselves forward as carers. Those proceedings concluded in early 2013 and, there being no other options apparent, adoption was pursued. Until placement with Mr and Mrs X, there was the possibility of attempting to make an application for revocation of the placement order under section 24 of the Act but no application was made and, at least until the autumn of 2014, there was not even any suggestion that Mr and Mrs M should care for the children. By the time they were placed for adoption, the children had been in care for well over two years. It was, of course, the making of an application for adoption orders that opened the door to a section 47(5) application by the mother. The authorities have stressed that the test for granting leave under that sub-section should not be set too high, but the process is nonetheless not a re-run of the original placement application but an adjunct of the adoption process. As the court observed in Re B-S (§74(v)), proper evidence of the circumstances is needed for section 47(5) applications, but they are typically dealt with on the basis of written evidence and submissions.

Here, the judge had the assistance of a lengthy statement from the social worker and a contribution, albeit by email rather than statement, from the prospective adopters.

Counsel for the mother is correct to observe that the social worker’s statement deals with the likely impact on the children of separation from the adopters quite shortly (§§36 to 38 of her first statement). However, the background to this is the information contained earlier in the statement about the adoptive placement and about the children’s behaviour in foster care which had caused concern, perhaps particularly in the case of D. There had been, the social worker said, “fluctuation in respect of the emotional and behavioural development for both D and A, over the course of their time as looked after children” (§10 ibid). She said that since placement with Mr and Mrs X, D’s behaviour had been notably calmer and she remarked upon “the stability of [both children’s] behaviours during the time they have been placed with Mr and Mrs X”. She described the adopters’ commitment to the process and their particular skills and experiences which equipped them to meet the specific needs of the children. Her view, expressed in §§36 to 38, was that the children had felt stability and consistency of care since placement, had fully accepted Mr and Mrs X as their adoptive parents and developed bonds with them. She said that, “[b]ased on the children’s current understanding and stability obtained”, the local authority’s view was that removal from the family would be detrimental to the welfare of the children.

The adopters themselves described in their email that the children had bonded, were happily functioning as a family unit with P, and were looking forward to receiving their new name. They said:

“It would be inhumane and violently traumatic to wrench them from the family that they have been praying for…. It will be a breach of trust and confidence since everything that they have been told and prepared for will be shown to be a ‘lie’. We think that they would find it impossible to trust for a long-term [sic].We do not think that they will be able to fully bond with a new family, no matter how loving they were.”

The judge did therefore have evidence before her about the children and the likely impact on them of moving to live with the uncle and aunt. Mr Bartlet-Jones argues that what is said about these children can be said of many, or even most, children in relation to whom a section 47(5) application is made, who will have been prepared for their move to adopters, will have settled into their new family and so forth. Circumstances inevitably vary considerably from case to case, however, and what matters is the judge’s evaluation of the particular circumstances of the children with whom he or she is concerned. Judge Williams is an experienced family judge who was entitled to bring her own professional expertise to bear upon the material with which she was presented concerning these children. She was entitled to accept, as she did at §23 of her judgment, the local authority’s submission that “if these children did not remain in their adoptive placement but were placed elsewhere then in the long term the therapy they have received to address the difficulties they have had in their short lives so far would have to be unpicked and this would cause damage to them and inevitable loss, possibly permanent, of trust in parenting figures”. In my judgment, in these circumstances, the argument that the only proper course open to the judge was to give leave so that there could be a fuller exploration of the feasibility of a move to Mr and Mrs M, in practical and psychological terms, is unsustainable.

The judge cannot be criticised for having identified in §18 of her judgment that there was “some doubt” about the placement with Mr and Mrs M. She was quite right to observe the differences between placing B, a single baby, with them as opposed to placing with them two additional older children who have already had a chequered history and who would suffer further damage, possibly permanent, by being removed from the people they had been led to believe were to be their mother and father forever and whom they have enthusiastically embraced as such. In addition, Mrs M had voiced doubts about aspects of the proposal herself which the judge set out in §9 of her judgment and referred to in §18, which also gave rise to questions about the prospects for the placement.

In short, therefore, whilst there were, as the judge recognised, positive things to be said about a placement with Mr and Mrs M, the possibility was also attended by a significant number of actual and potential difficulties and uncertainties as she identified. They were more fundamental than the short term problems relating to matters such as immigration, involving also the doubts about Mr and Mrs M’s situation and the likely impact on the children.

I do not accept that the judge gave too much weight to the disruption that would arise over American visas or that her decision was dictated by this consideration. Counsel submitted that the judge treated this as determinative and that she had therefore failed to observe the message in, for example, §§21 to 23 of Re W; Re H that, once it has been established that the parent has solid grounds for seeking leave, the judge must consider very carefully whether the child’s welfare really does necessitate a refusal of leave, and that it was unlikely that this would often be so. The door was opened to this submission by the structure of the judge’s judgment. Mr Bartlet-Jones submitted that after §18 of the judgment, in which the judge dealt with “solidity”, she progressed to what counsel had invited her to treat as the third stage of the process, namely a consideration of whether the child’s welfare required leave to be refused. Short term visa problems could not, in his submission, justify the refusal of leave at this stage.

It was the structure of the judge’s judgment that persuaded me that permission to appeal should be granted. However, it seems to me, following careful study of the judgment as a whole, that the judge did, in fact, have in mind the correct factors and determine the second question (whether, given the change of circumstances, leave to oppose should be granted) appropriately, with them in mind. Her judgment was given ex tempore as many judgments are. This does not mean that a judge has given the case any the less careful consideration, but it may mean that the judgment is expressed more robustly or structured rather differently from the way in which it would have been had the judge had the luxury of more time to prepare it. What matters, ultimately, is the substance of the judgment, read in its entirety. Judge Williams’ consideration of the parents’ prospects of success in §18 was focussed only on the solidity of the Mr and Mrs M proposal (and she was diffident even about that). It did not take in consideration of the impact of a move on the children which came later in her judgment. Had the authorities been presented to her rather differently, she would no doubt have included wider welfare considerations in considering solidity, given that evaluating the prospects of success meant looking into the future and forecasting, as best she could, how the adoption application would fare. In the paragraphs that followed, however, this was exactly what she did, concluding, as she summarised in §25, that an adoption order was going to be required. The circumstances which influenced this conclusion did incorporate the question of the short term disruption caused to the X family by immigration problems but it was not elevated to a determining factor and the judge expressly recognised that the mother’s case was that these short term problems were manageable and a price worth paying for long term gain of a placement with Mr and Mrs M. Similarly, the appellant is not right to say that the judge’s decision was based largely on the risk of the children having to be returned to foster care during the period of immigration disruption; she expressly said that, whilst it was a concern, it was not known whether it would actually arise.

As for the Article 6/Article 8 challenge, it adds nothing to the other grounds in this case and it was no doubt for that reason that it was not amplified in oral submissions. The judge was conscious that adoption should only occur when nothing else would do and was obviously approaching her decision with that in mind; nothing more could be required for the purposes of Article 8. In any event, as the judge observed, the Article 8 argument was complicated here by the fact that the children were living with their half sibling already; that family life would be disrupted by a move to live with Mr and Mrs M. No breach of Article 6 was involved in the way in which the proceedings were dealt with, on submissions based on the written evidence, which was entirely conventional for section 47(5) applications.

Accordingly, it has not been demonstrated, my view, that the judge was wrong to decide as she did. Her reasons appear from the judgment, read as a whole, and are cogent and compelling. I would therefore dismiss the appeal.

I agree.