W (A Child)

This appeal raises the following issues which may be of general importance:

In dealing with the first three of the general issues that I have identified, it will be, unfortunately, necessary to repeat matters which have been identified and decided in previously reported decisions of this court.

The background facts may be shortly stated. The child at the centre of the case is a young girl, A, who was born on 1^st May 2014. Neither of her parents, who are unmarried, were, as a result of an unfortunate combination of low intellect and drug abuse, able to look after her. The child protection process commenced on the day of her birth and she was placed with foster carers when only one day old. Neither parent played any real part in the care proceedings and on 21^st October 2014 a care order was made coupled with an order authorising the local authority to place A for adoption.

At that time the social services had attempted to identify relevant family members but, due to the non-cooperation of the parents and the maternal family, the social workers did not have any knowledge of the paternal family and were, consequently, unable to trace them.

In December 2014 A, then aged seven months, was placed with prospective adopters (“Mr and Mrs X”). She has remained in their care ever since. By the time of the decision which is under challenge in this appeal, which was made on 20^th May 2016, A was just over 2 years old and had lived for a period of some 17 months in the care of Mr and Mrs X. All the evidence was to the effect that Mr and Mrs X, as they were entitled and expected to do, had fully committed themselves to becoming “forever” parents to A and that they had succeeded in establishing a firm and sound bond with her so that she was seen to be thriving in their care as a bright and busy 2 year old girl.

Mr and Mrs X filed an application for an adoption order with respect to A on 1^st April 2015.

In June 2015 a second child was born to A’s parents, a boy, J. Enquiries were once again made as to potential avenues for the care of this young baby within the family and, on this occasion, the paternal grandparents were identified and contacted by social workers. It was in this way that, for the very first time, the paternal grandparents became aware of the existence of their first grandchild, A.

At a directions hearing within Mr and Mrs X’s adoption proceedings on 2^nd July 2015, the father and the paternal grandparents made known to the court and to all the parties that it was their wish to care for A and therefore to oppose the making of an adoption order in favour of Mr and Mrs X.

In due course the grandparents applied for i) permission to oppose the adoption application under ACA 2002, s 47(5) and ii) permission to apply for a Child Arrangements Order or a Special Guardianship Order. It is correctly accepted by all parties that, as permission to oppose adoption under s 47(5) may only be granted in favour of “a parent or guardian,” the grandparents had been in error in making a s 47(5) application.

On 21^st December 2015 HHJ Wood, who was case managing the proceedings, granted the grandparents permission to apply for a Child Arrangements Order and a Special Guardianship Order. It is to be noted that the Position Statement filed by counsel on behalf of Mr and Mrs X prior to the December 2015 hearing expressly proposed a direction in the following terms:

“Permission is granted to oppose adoption and permission to apply for child arrangements order, noting that this is not actively opposed by [Mr and Mrs X].”

In April 2016 A’s mother gave birth to a third child, K, who is a full sibling to the older two children. After an assessment process J was placed in the care of the paternal grandparents on 3^rd July 2015 and is now permanently in their care under a special guardianship order. K was placed in the care of a paternal aunt under an interim care order. All the indications are that these two children, J and K, will find a permanent home in the paternal family with their respective carers.

Over two days in April 2016 Mr Justice Bodey, who had had no previous involvement in the case, heard the cross applications by Mr and Mrs X, on the one hand, for an adoption order and by the paternal grandparents, on the other, for a Special Guardianship Order. The adoption application was supported by the local authority which had responsibility for A under the Care and Placement for Adoption Orders. The Special Guardianship Application made by the paternal grandparents was supported by an independent social worker who had been jointly instructed as an expert in the case and by the Children’s Guardian. A’s parents played no part in the proceedings, albeit that the father supported his parents’ application.

Following a short adjournment during which the court was furnished with additional written material aimed at addressing identified lacunae within the evidence, Bodey J delivered judgment on 20^th May and in due course made an order dismissing the adoption application and making a Special Guardianship Order in favour of the paternal grandparents to take effect once transitional arrangements had been put into place. It is against that outcome that Mr and Mrs X now appeal. Permission to appeal and a stay of the order were granted by Lady Justice King on 9^th June and the full appeal hearing was heard by this court on 20^th July 2016.

The prospective adopters’ appeal is presented by Mr Frank Feehan QC, who did not appear below, and Mr Martin Todd, who did, on two broad bases, within which are gathered a range of more detailed points. The first basis is to make high level, overarching submissions of principle to the effect that, as a matter of law and policy, once a child has become firmly established in a prospective adoptive home, any application by the parents or wider natural family to remove her from that placement should simply not be contemplated. The second basis is to make specific criticism of the evidence before the judge, the conduct of the proceedings and the judge’s judgment in support of an overall conclusion that the judge’s welfare evaluation was “wrong” (in the context of the seven categories identified by Lord Neuberger in Re B [2013] UKSC 33, para. 93) and/or that the process, evidence and judicial evaluation were so flawed as fatally to compromise the validity of the judge’s final welfare analysis.

Although, sensibly, Mr Feehan spent virtually no time in promoting the high level submissions relating to law and policy, those matters are not unimportant in establishing the overall landscape within which decisions at this stage in a child’s journey toward adoption fall to be made. In due course, therefore, I will identify, and shortly address some of those overarching issues. I turn first, however, to describe the detail of the evidence and trial process insofar as it is relevant to the appeal.

Unusually, I will consider the Children’s Guardian’s evidence first because she submitted her concluded recommendation to the court prior to the instruction of the independent social worker and prior to the submission of evidence by the local authority social worker who was responsible for A’s placement with Mr and Mrs X. The Guardian’s report was completed on 30^th November 2015, a month before the grandparents were granted leave to apply to have A in their care.

It is unfortunately necessary to describe this Children’s Guardian’s report as being wholly inadequate and, in a number of serious respects, downright wrong. In attaching that highly negative description to the Guardian’s work I am conscious that the appeal process has not afforded the author of the report any opportunity to explain the circumstances. During the hearing, on instructions, her counsel, Mr Nicholas Stoner QC, who did not appear below, and Mr Stephen Ainsley who did, told the court that the Guardian accepted that the written analysis was inadequate. It is not my wish to cause the Guardian undue professional or personal embarrassment, but it is, unfortunately, necessary to spell out the defects in this document and in the Guardian’s oral evidence because of the reliance placed upon her opinion by the judge in his overall welfare evaluation.

In that context, I would draw particular attention to the following points taken in the order in which they appear in the report, rather than any order of importance:

The section of the Guardian’s report headed “Professional Judgment” is immediately followed by the concluding paragraphs under the heading “Recommendations”. A number of issues arise with respect to this all important final section of the report which reads as follows:

“63.

A’s immediate need is to be placed in a nurturing, secure, safe environment, where she can continue to make the positive attachments she has already began to make. A has a need for high quality, permanent care that is consistent and robust. Due to her age, A needs the opportunity to be claimed by permanent carers therefore adoption is not in her best interests as, in my view, [paternal grandparents] can provide the necessary level of permanent care needed by A.

64.

A placement with her paternal grandparents will enable A to grow up with an awareness of her origins which she can build upon when older, if she so wishes.

65.

Later in life, A will have questions and feelings around not being raised by her parents but with appropriate supports from her grandparents and other extended family members this should help her make sense of her history.”

I shall in due course (at paragraph 65) draw together the various issues that relate to the phrase “nothing else will do” which achieved prominence following Re B and other cases. It is only important at this stage, having just quoted paragraph 63 of the Guardian’s report, to draw attention to the priority afforded to one factor, namely that the “paternal grandparents can provide the necessary level of permanent care needed by A”. It is but one factor in the case, but it is the determinative factor in the Guardian’s analysis, the existence of which dictates that (“therefore”) adoption is not in her best interests. All of the other factors listed in the first two and a half sentences of that paragraph in fact apply fully and without reservation to A’s current placement with Mr and Mrs X. A is already placed in a nurturing, secure, safe environment, where she can continue to make the positive attachments that she has already begun to make. A already receives high quality care which is consistent and robust and which is delivered on the basis that it is intended to be permanent. She has already had the opportunity to be “claimed by permanent carers” and they have claimed her. The existence of the potential to have a permanent home with her paternal grandparents is the only countervailing factor yet this is seen as, to use Mr Feehan’s phrase, the “trump card” in a manner which, arguably (if not plainly) elevates placement with the natural family to the status of paramount consideration without the need to undertake any wider, more sophisticated evaluation of A’s overall welfare needs.

Paragraph 64 does underline one of the important factors in favour of placement with the natural family, but it is only one of the factors in the case. Paragraph 65 merely deals with an ancillary concern over A’s relationship with her natural parents if she grows up living with her grandparents.

At no stage, either in the “recommendations” section or elsewhere in the Guardian’s report, is any reference made to the level of attachment that A must have established with Mr and Mrs X and the consequences, both short term and longer term, for breaking that attachment in order to remove her from their home to her grandparents. The Children’s Guardian had not met A or Mr and Mrs X before submitting her “final” report. She did not do so, partly as a result of a period of absence from work due to sickness, until March or April 2016. Following her meeting with the child and prospective adopters, the Guardian did not file any further report to the court.

During the course of Mr Feehan’s oral submissions in support of the appeal I flagged up a number of the more prominent criticisms that can be made of the Guardian’s report so that Mr Stoner was able to take brief instructions prior to making his submissions on her behalf. Whilst accepting that the written analysis was “inadequate”, he submitted that the Guardian’s oral evidence rectified those inadequacies. He accepted that the structure of the analysis offered at paragraph 63 was not legally correct and that it was not the balancing exercise which had been, correctly, advertised by the Guardian as being necessary in paragraph 46 of her report (see paragraph 18(f) above). Mr Stoner was not instructed to take issue with the main criticisms that had been identified nor to seek to justify the basis upon which the Guardian had described her analysis and recommendation in the report.

This appeal has been brought on promptly for obvious reasons. There is no note before the court of the Guardian’s oral evidence, although each of the parties apparently has a working note prepared by their respective counsel during the hearing. We are left therefore to attempt to divine the Guardian’s oral evidence from the judge’s description of it in his judgment, which is plainly less than a full account of the oral evidence that will have been given.

In his judgment, the judge described the Guardian as having 22 years’ experience in social work with some 5 years of that time spent in fostering and adoption. She has been a CAFCASS Children’s Guardian for the last 10 years. The account of the Guardian’s oral evidence is as follows:

“38.

In her oral evidence, having read all the up-to-date information and heard the paternal grandmother regarding her (the grandmother’s) health [the Guardian] did not change her recommendation. She recognised that Mr and Mrs X would be devastated if A had to move. She stated that they had impressed on their wish to do everything possible to help in such a move, although she thought that (understandably) they may not have the emotional resolve. Thus she considered it would be possible and necessary to use [child’s social worker’s] existing relationship with A, such that he would be the facilitator (my word not hers) in the transfer process. She approved of the paternal families’ proposal that J should stay with Aunt A-M in the initial stages and only be reintroduced into the grandparents’ family home once A had become more settled.”

39.Asked about her experience as to the likely duration of upset for A, [Guardian] described it as difficult to set a timescale, since all children and involved adults are different. She said words to the effect:

“… it’s certain that there will be a degree of disruption more intense in the early weeks; but after a period of months it will be less acute.”

She accepted that to start with A would be bewildered and completely confused. She would have to try to understand why her parents, Mr and Mrs X, would no longer be caring for her and this would have an effect on her. She agreed that the element of ‘permission’ from Mr and Mrs X might well be missing from the transfer process, but commented:

“… but we have to deal with realities. Children are often moved from their families when their carers find it impossible to give permission and we deal with what we have.” (or words to that effect).

She accepted in answer to Mr Todd [counsel for Mr and Mrs X] that such moves are generally made because of the existence of unacceptable risks in the current placement, but she went on to say that many children being moved do not see it as such, their lifestyle involving such risks being the norm for them. [Guardian] agreed that she had seen the paternal grandparents and their family twice but had only met the adopters once, namely earlier this month. She said she had been waiting before doing so to see whether leave would be granted to the paternal grandparents. In her last answer to Mr Todd, she repeated her opinion in her written report, namely that since the paternal grandparents can in her view meet A’s needs, adoption is not the best outcome for her.”

Before this court, counsel, having referred to the notes of evidence, confirmed that there is no note of the Guardian saying anything more in oral evidence in relation to the impact on A of being moved from Mr and Mrs X other than that which is recorded in the judge’s judgment.

That account of the Guardian’s oral evidence makes it plain that, although, now, she regards the analysis offered in her report as being “inadequate”, she did not revisit the task of conducting an overall welfare analysis aimed at balancing the pros and cons for the two competing options for A’s long term care. No reference is made in the Guardian’s report or in the account given of her oral evidence to the welfare checklists in either Children Act l989, s l or ACA 2002, s 1(4). The entirety of the oral evidence recorded by the judge relates to how the move to the grandparents is to take place, and the impact of that move on A, rather than whether making the move is in the child’s long term best interests.

The last sentence of the judge’s record of the Guardian’s oral evidence is important as the Guardian is recorded not only as adhering to her opinion in her written report but repeating it in the following terms:

“since the paternal grandparents can in her view meet A’s needs, adoption is not the best outcome for her.”

The soundness of that conclusion, which is now accepted on behalf of the Guardian as being mounted on a legally incorrect basis, is not questioned by the judge either at this point or elsewhere in his judgment.

The importance of the content of the Guardian’s contribution both orally and on paper, therefore, is that the judge, apparently, did not identify the flaws within it but, rather, as shall be seen, placed reliance upon the Guardian’s opinion.

An independent social worker, Mrs Pauline Fairbairn, was jointly instructed to conduct an assessment. The letter of instruction indicates that the assessment was to have three components:

Mrs Fairbairn’s report predominantly contains a comprehensive and thorough professional social work assessment of the paternal grandparents and their ability to provide care for two children. As she had been instructed to do, Mrs Fairbairn provided a recommendation on the ultimate welfare question of whether A should go to live with her grandparents and she concluded that indeed she should. The process of reasoning leading to that conclusion can be identified in the following four paragraphs of her report:

Despite the fact that the ISW report is plainly a professional piece of work of an altogether higher quality than that of the Children’s Guardian, for the reasons that I explain later in this judgment under the heading “Nothing else will do” the approach taken by the author is significantly flawed, as a matter of law, to the extent that Mr Feehan is entitled to submit that, if this is indeed a true assessment of A’s welfare, it is a skewed assessment as a result of the author’s misapprehension as to the law.

Again we do not have a transcript of Mrs Fairbairn’s oral evidence. It is summarised in one paragraph of the judgment which includes the following:

“[Mrs Fairbairn] agreed with Mr Todd that A would suffer ‘a bereavement’ which would have a significant effect ‘initially’ (Mrs Fairbairn’s word). She told Mr Todd that moving young children is an area in which she has experience, expressing the view again that A’s strong current attachments will make it more likely that she will attach again on moving on. She emphasised her concern that, if adopted then when she grew older, A would suffer from knowing that she had been denied a childhood with her two siblings J and K. She accepted that because of A’s sense of loss, she would or could regress ‘temporarily’ (again, Mrs Fairbairn’s word). Whilst acknowledging that the removal of children from foster care is different in kind from removal from proposed adopters (as here), she made the point that such children removed from foster care settled surprisingly quickly. She did not think that the paternal grandparents would have difficulty dealing with such things as A’s crying, bedwetting, tantrums or not eating. She added that “… it always amazes me how quickly children settle in and how resilient they are …” (although she stressed that in so saying she was not seeking to detract from how difficult A would find the removal from Mr and Mrs X). Asked by Mr Ainsley if A’s upset and unsettlement would last ‘for weeks, months or years’, Mrs Fairbairn answered with words to the effect: “… more months than years.” She said:

“… I do think she would be unsettled, but not for long.”

Mrs Fairbairn told me that she is 100% confident that A would settle in the extended birth family, confirming how very impressed she was with the family. She did not think that there was a risk of a transfer of A going so badly wrong that it would need to be reconsidered. It would in her opinion be ‘devastating’ for A to realise later in her life that her siblings had been allowed to live in the birth family when she had been denied this.”

The social worker who had worked with Mr and Mrs X since July 2013 supplied a statement and gave oral evidence in which he highlighted the couple’s complete emotional investment in A from the outset and their unconditional love and acceptance of her. He reported that strong bonds had been formed between the couple and the child. He regarded the proposition that A’s sound attachments could be transferred between carers as too simplistic and not applicable to this case. He expressed very deep concern about the distress which would be caused to A at having to be handed over by Mr and Mrs X which, he considered, would leave her extremely anxious and traumatised. A would, in his opinion, suffer “a severe and intense bereavement with the loss of her primary caregivers.”

In oral evidence the judgment records him as accepting that he has only seen the case from one perspective and that he did not purport to have analysed all the options for A. He confirmed that he would be willing to work to assist any transfer that was ordered.

Both grandparents are in their late fifties. The grandmother has been treated for anxiety and for depression for much of her adult life, although, as the judge found, these conditions were now well controlled with medication. In addition, more recently, she has suffered from a physical condition in each of her feet, one of which has undergone a successful operation and she was, at the time of the hearing, due to undergo an operation on the other foot. She was less than fully mobile, but reported being able to cope with her disability. Those who assessed her did not consider that any aspect of her medical history ruled her out as a full time carer for A and her brother.

The judge summarised the legal context applicable to these competing applications in the course of two substantial paragraphs. Mr Feehan takes issue with each. In the first paragraph (paragraph 54) the judge offers a “brief summary” of the welfare checklist set out in ACA 2002, s 1(4). In relation to s 1(4)(f) the summary reads as follows:

“Then importantly at s 1(4)(f), a court must have regard to the relationship which the child has with relatives including the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child’s relatives to provide the child with a secure environment in which the child can develop and otherwise meet the child’s needs; and the wishes and feelings of any of the child’s relatives.”

The full terms of ACA 2002, s 1(4)(f) are as follows:

“(f)

the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)

the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

Mr Feehan’s point in relation to the judge’s summary is short, but nonetheless important. Although the judge rightly summarises each of the three sub-sub-sub sections of s 1(4)(f), each time he does so he states that the provision applies to the relationship that the child has with “relatives”, whereas the statute is not limited to relationships with “relatives” but applies to relationships “with any other person in relation to whom the court…considers the relationship to be relevant”. Mr Feehan rightly says that on any reading of that provision Mr and Mrs X must be regarded as being “any other person” whose relationship with A should be considered as relevant.

In my view, it should be self-evident that a prospective adopter with whom a child has been placed under a placement for adoption order will automatically be “any other person” within the context of s 1(4)(f). Such an individual will have the child committed to their care for the express purpose of establishing themselves in the important, if not the most important, relationship of parent to the child both in reality and, if the anticipated adoption takes place, in law. Such an individual will have parental responsibility for the child, shared with the adoption agency and any parent, upon the moment that the adoptive placement commences (ACA 2002 s 25(3)). It is also of note that this court in Re M’P-P (Children) [2015] EWCA Civ 584 held that a local authority foster carer, who intended in due course to put herself forward as a prospective adopter, qualified as “any other person” within s 1(4)(f).

Whilst Mr Feehan does not point to this apparent error on the part of the judge as being, of itself, an appeal winning point, he submits that it is indeed an error and it forms part of an overwhelming picture of proceedings which were wholly focussed upon the grandparental claim to the exclusion of a balanced consideration of the other option for A’s long term care, namely adoption. In his submissions he described the progressive accumulation of points such as this as being “the snowball effect” resulting in a process which was so substantially flawed as to invalidate the judge’s overall welfare analysis.

The second paragraph of the judge’s summary of the law (paragraph 55) noted that there were various “indications within statute and case law as to the (unsurprising) importance to children of their being brought up in their natural family where this is safe and not otherwise contra indicated.” In the course of a short summary referring to a number of cases the judge turned to Re B-S [2013] EWCA Civ 1146. Re B-S was a case concerning the approach to be taken to an application by a parent for leave to oppose adoption. In paragraph 74 Sir James Munby P set out some ten points relevant to second question for the court in such proceedings, namely consideration of the parent’s ultimate prospects of success and the impact on the child’s welfare, which is the paramount consideration at that stage. In his judgment Bodey J chose to highlight two of these ten points (vii) and (viii) which read as follows:

“(vii)

The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand the older the child and the longer the child has been placed, the greater the adverse impacts of disturbing the arrangements are likely to be.

(viii)

“The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124 that ‘the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems’. That was said in the context of contact but it has a much wider resonance.”

Mr Feehan’s submission is that the judge has cherry picked two points from the list in paragraph 74 which are particularly favourable to the grandparents in this case and that this is again an example of the skewed focus of the proceedings.

Although Mr Feehan’s submission is understandable, it is, in my view, difficult to sustain on this point given the very great experience of this particular judge and the fact that he prefaced his selection of these two points with the following sentence:

“In Re B-S the Court of Appeal set out in the context of leave to oppose adoptions, a number of relevant considerations at paragraph 74 (i) to (x), all of which I have considered on this and other occasions.”

In any event factor (vii) is a neutrally balanced description of fact specific points to be made on either side in any individual case.

After his summary of the law the judge correctly stated that it was “necessary to balance the benefits and the detriments, the pros and the cons of each reasonable option for a child’s future” and that in this case there was a straight choice namely “should A stay with Mr and Mrs X or should she be sensitively moved to the grandparents?”. He then set about identifying “the pros and cons of each possible outcome”.

In the context of this appeal it is of particular note that the very first element of the judge’s analysis is the “very significant factor” that A is “secure, well settled, attached, happy, confident and meeting her milestones” in the care of Mr and Mrs X. He states that “it is not‘rocket science’ to say that she will be very distressed indeed and to a greater or lesser extent traumatised by a move to another family whom she has never met” and “all things being equal, no one would even begin to contemplate moving A from her present home”.

The judge then identifies the two sides of the same coin which he considered were at the centre of the case namely:

“the disadvantage of an adoption order in favour of Mr and Mrs X is that which is the advantage of a Special Guardianship order to the paternal grandparents: that a placement by way of adoption is not an upbringing within a child’s natural family.”

The principal factor in favour of the grandparents was, therefore, that A would be brought up within the bosom of a close knit family and, in particular, have a close relationship with one or both of her siblings. The judge held that such an upbringing would remove the risk that:

“…later in life A would become resentful and say or think ‘why was I denied an upbringing with my family and my siblings when they were able to have such an upbringing which I could have had too?’ ”

The judge then identified the downside of the process of moving A as being the risk that the inevitable distress, upset and unsettlement would turn out to be more profound than that anticipated by Mrs Fairbairn or the Children’s Guardian. He said “there is a risk that [adoption social worker’s] very real concerns would turn out to be proved by events. If that were the case, real damage would be done to A with no benefit”.

The judge also put in the scales on the deficit side the grandmother’s somewhat limited mobility, the history of anxiety and depression and the grandparents’ age. If anything were to happen to either grandparent, the judge held that this would “clearly be very detrimental to A” although he was satisfied that there would be complete and very satisfactory “cover” from other members of the extended paternal family.

The judge drew his analysis to a conclusion at paragraph 60 in these words:

“…I have not found the decision at all easy. Indeed I have agonised over it. It seems utterly counterintuitive to move a child who is so happy, settled, loved and well cared for. However, in the last analysis, I have concluded that if the transition can be successfully made, then on the balance of probabilities, it would be in A’s best interests throughout her life to be united with her natural family.”

Of the various factors in the case the judge drew particular attention to:

“I consider there is a real risk of A being resentful later on, say when she moves into early adolescence, about having had a completely different upbringing from her siblings and having missed out on their company, when the natural family were (as I find) able and willing to bring her up. Sibling relationships are generally recognised as being some of the longest lasting and (if things work out well) most valuable we may have in our lives.”

Pausing there, it is right to make two observations. Firstly, were it to stand alone, the judge’s welfare analysis is a good example of the comprehensive evaluation of the pros and cons of two competing options that is required by the modern case law and, indeed, has always been required of a Family Court both before CA l989 and at all times since.

The second point is that, save in one very important respect, Mr Feehan does not submit that the judge omitted consideration of any relevant factor or afforded too much or too little weight to any of the matters that were considered. The important omission, Mr Feehan submits, is the factor to which the judge only turned after he had announced his conclusion, namely the manner in which the transition of A from one home to the other could be achieved and the degree of harm to her that was to be contemplated as a result.

It will be recalled that the judge had placed on the downside of the balance against a move for A the risk that the level of distress and upset would be more profound than that anticipated by Mrs Fairbairn and the Children’s Guardian. It will also be recalled that there was a clear caveat to the announcement of his ultimate conclusion that A should be reunited with her natural family; that caveat was “if the transition can be successfully made”. Having set up the outcome of the basic welfare evaluation in that way the judge rightly identified the determining issue in these terms (at paragraph 62):

“That being so, the question comes down to the risks of making a transition to the grandparents.”

In this regard, and in addition to the written and oral evidence that was current during the proceedings, the judge received further short supplementary statements from the adoption social worker and Mrs Fairbairn prior to preparing his reserved judgment.

The social worker described three basic options:

The social worker recorded that therapists attached to the adoption and fostering service had advised that A “will be negatively effected and the trauma of the move will most likely impact on her emotional well being and therefore impair the attachment process”. Option 1 also included the caveat that if at any time Mr X felt unable to participate the programme would have to be abandoned in favour of either Option 2 or 3.

Mrs Fairbairn’s supplemental report ruled out Option 1 on the basis that Mr and Mrs X would “simply find the process too distressing and this would impact on A” and Option 3. She therefore advised:

“the only other option would be Option 2 which everyone agrees will have a significant impact on A and the support on offer from therapist would in my opinion be vital in assisting (grandparents) in coping with A’s confusion and distress and helping A through the inevitable trauma of the move.”

She expressed every confidence that the grandparents would engage with the support offered and place A’s needs first. Once again she couched her final conclusion in the following terms:

“This is a very distressing case but I remain of the opinion that where a child has birth family who are able to offer an acceptable level of care in a permanent home that a child should not be denied the right to be brought up within their family of origin.” (emphasis added)

In dealing with this all important aspect the judge, whilst recording the adoption social worker’s preference for Option 1 if it were available, for some reason did not record Mrs Fairbairn’s view that that was not a viable course. In answering the question of potential harm to A that he had set himself, the judge said this:

“I accept the genuine and conscientious anxieties of [social worker] about the risks of moving A. On the other hand he is inevitably (and this is not a criticism) seeing it all from the point of view of one who has for over a year and a half supported Mr and Mrs X and the placement of A with them. I have to set against [social worker’s] concerns, the unanimous view of the other experts, Mrs Fairbairn and [Guardian], who between them have 60 years in social work and childcare, and [LA social worker] based on her more limited remit. As already set out, their opinions are that this move can be made and that, although it will inevitably cause distress, confusion and some regression, this should be and would probably be measurable in ‘months rather than years’, with A coming to adapt to life within her new family. If that can be achieved, with the preponderance of the evidence which I accept being that it can be, then a move now would in my judgment be in the best interests of A’s welfare throughout her life. Put at its lowest I am unable to conclude, having regard to s 1(6) of the Act, that the making of an adoption order would be better for A than not doing so.”

Having announced his decision, Bodey J explained that, despite neither party forcing submissions on the issue of contact, he had nevertheless given consideration to the prospect of some form contact being of benefit to A. However, despite the initial attraction of contact providing some form of bridge between the two households if A remained with Mr and Mrs X, the judge ruled it out as being too fraught with difficulty.

The primary submission, made as a matter of principle, on behalf of the appellants is put as follows:

“To allow an application to prevent an adoption where a child has spent sufficient time with her adoptive family that she views them as her only and permanent family is contrary to public policy and in breach of the human rights of the child and the adoptive parents.”

Mr Feehan chose not to develop these submissions in his oral presentation at the hearing. Insofar as they reminded the court of the general principle of avoiding delay and achieving clarity and finality for a child, in principle, prior to placement for adoption, there was no need for any further embellishment. Insofar as the submissions indicated that the court should go further and, on some basis, hold that the statutory scheme, by tolerating the late entrance of a natural family candidate for the care of a child after the making of placement order, was so contrary to principle and the European Convention on Human Rights that it should be struck down for incompatibility, Mr Feehan accepted that it was not appropriate to advance such an adventurous submission in this court in these proceedings.

As will become apparent I have been persuaded by the overall force of the appellant’s case in relation to specific defects in the evidence and procedure to the extent that I accept the appellants’ secondary submission that the judge’s welfare evaluation must be regarded as fatally flawed as a result. I therefore propose to summarise my conclusions on the specific points made in the Appellants’ subsidiary grounds of appeal, without first separately rehearsing each specific point raised on the appellant’s behalf.

Although Mr Feehan did not advance his overarching submission to the effect that allowing any application to prevent an adoption where a child has spent a sufficient time with an adoptive family would be a breach of public policy and/or human rights, the factors which may underlie such a submission are nevertheless valid. Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.

Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. At the earlier time when a placement order is being considered, that side of the balance, which must now accommodate the weight to be afforded to the child’s place within the adoptive family, simply does not exist. The balance at the placement stage, therefore, naturally tilts towards a family placement where the relatives have been assessed, as these grandparents have, as being able to provide good, long term care for a child within their family. At the placement order stage, the other side of the scales (against a family placement) are likely to be populated by factors such as the risk of harm and the need to protect the child. The question of harm to the child occurring as a result of leaving their current placement will normally not arise as a factor at the pre-placement stage given that such a child is likely to be in temporary foster care and will have to move in any event either on to an adoptive placement or back to the natural family.

In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it. In that regard, the generalised evidence of the ISW and the Guardian, which did not involve any assessment of A and Mr and Mrs X, in my view fell short of what is required.

This court recently considered similar issues to those in the present case in the appeal of Re M’P-P [2015] EWCA Civ 584. In that case the issue was whether two children who had effectively lived for all their lives with a local authority foster care should be adopted by her or placed with a paternal aunt who was a total stranger to them. At paragraph 47 onwards in the judgment of McFarlane LJ, consideration is given to the balance, in a public law case, between a ‘family’ placement, on the one hand, and the ‘status quo’ that may, unusually, be established on the facts of a particular public law case on the other. I repeat those words here for they seem to have equal application to the present case:

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner’”.

The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.

It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.

The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

I have already described the unfortunate omission from the judge’s summary of s 1(4)(f) of any reference to Mr and Mrs X and their relationship with A. That omission, which is significant in that the word “relatives” is repeated three times without extension to the proposed adopters is, in my view, to a large degree remedied by the prominence that the judge gives to A’s placement and relationship with Mr and Mrs X in his ultimate welfare analysis. In like terms, I have already indicated that insofar as the judge was selective in the quotations that he made from the factors listed in paragraph 74 of Re B-S, this experienced judge who has regularly considered the paragraph as a whole cannot be said to have been in ignorance or have ignored any of the other points within it.

Of greater note is the absence from the judgment of any reference to the relevant parties’ human rights under the ECHR. As a caveat at the end of the approved transcript of the judgment the judge has appended the following note:

“As I said to Mr Todd after delivery of the Judgment, I have of course had regard to the various Article 8 rights to respect for private life which are engaged here, but I do not find in practice in cases like this that they add anything in reality to the statutory welfare test.”

Ultimately, Bodey J may well be correct that in the ordinary run of cases balancing the Article 8 rights to family life of the respective parties and the child will often not add to or alter the judge’s welfare analysis under domestic law. Strasbourg jurisprudence has long endorsed the attribution of the status of paramount consideration to the child’s welfare under English domestic law. Where ECHR considerations often do, and must, add a dimension, is on the question of necessity and proportionality where the outcome that the court is considering is some form of state intervention in family life; hence “nothing else will do”.

The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.

If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

A number of short, separate factors arise under the above heading. Firstly, although permission had been given for Mr and Mrs X to be called to give evidence at the hearing, no party sought to have them called and their own lawyers did not call them. Consequently the judge never saw them. Whilst it is unusual when determining the issue of where a child shall live as between two competing sets of carers for the judge not to encounter each of the two sets of contestants in the flesh, Bodey J cannot be criticised for the absence of that facility in this case given that, for some reason, Mr and Mrs X’s own lawyers did not call them before the judge. Their absence, however, robbed the judge of the ability to hear first-hand about A from the only two people who know her very well.

The absence of any information about A, other than bland factual recital, from the Guardian’s written report or oral evidence, again removed a valuable source of information about the child of the centre of the proceedings that would normally be before a judge.

Although the report of the ISW does contain some information about A, it was not part of her brief to conduct a full assessment of Mr and Mrs X and A’s relationship with them; indeed, initially, she was instructed not to see the child. Thus, although it was accepted that she had formed a strong bond with the prospective adopters, there was no sophisticated, professional, in-depth assessment of their relationship and, consequently, any professional opinion given as to the effect on her of breaking that relationship could only have been based on general principles and nothing more.

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have “ a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

I have already, no doubt at undue length, spelled out the wholesale inadequacy of the Children’s Guardian’s report and the fundamental error into which both she and the ISW fell in arriving at their recommendation to the court. Both of those witnesses went on to give their advice to the judge as to A moving from Mr and Mrs X to the grandparents in the context of social workers who had already concluded that she had to move, whereas the distress to her of making the move should have been part of the preliminary evaluation of whether she should or should not leave her current home. The focus of their oral evidence was on the ‘how’ rather than on ‘whether’ she should move at all.

Unfortunately the judge did not identify in his judgment any error or fault-line in the contribution of the Children’s Guardian. On the contrary, he sought to rely upon her evidence and, as I find it, the flawed evidence of the ISW, holding both witnesses up as highly experienced social work professions whose opinion on the prospects of harm to A from any move being preferred to that of the adoption social worker who knew the child well. In failing to identify the significant errors in the contributions of both these professional witnesses, and by going on to accept their opinion, I am afraid that this highly experienced judge fell into error. In circumstances where it was the opinion of these two witnesses that swayed the judge on, what he identified as, the all important question of whether A could make the move without undue or permanent harm his conclusion on that point cannot be regarded as being safe and sound.

Finally, again on the question of whether A could make the move, the judge assumed that Mr X would play a part in a staged process over 4 days, whereas the evidence of  Mrs Fairbairn on this point was that the only viable option was Option 2 and therefore the move for A would happen in an unplanned manner on one particular day, simply as a result of A being physically removed from her home with Mr and Mrs X by the social worker and taken, there and then, to start her life in the home of the grandparents who are to her, despite the undoubted love they will feel towards her, total strangers. Given the importance of this move, and the potential for it to cause harm to A, the judge’s failure to consider the impact of the Option 2 process on her to a degree undermined his conclusion in favour of the move taking place.

As I have observed (paragraph 52), were it to stand alone, and without any knowledge of the underlying evidence, the judge’s welfare evaluation of the pros and cons displays is a good example of that which is required by the modern case law, and has in reality always been required in a child case. In determining this appeal I have given anxious consideration to the question of whether, despite what had gone before, the judge’s welfare analysis should nevertheless stand. In particular, as well as giving due weight to the status quo (‘all things being equal no one would even begin to contemplate moving A from her present home’), Bodey J affords prominence, on the other side of the scales, to the importance of A being able to grow up and have a full relationship with her two siblings.

For the reasons that I have given, despite the obvious care and sensitivity applied by Bodey J to the anxious task of deciding this issue, and despite the fact that he had identified and weighed most if not all of the relevant factors, I have concluded that the evidence on the all-important question, namely could A make the move without undue harm, came from two sources that were wholly compromised and unreliable. The fact that the judge did not identify any error in the approach taken by the ISW or the Guardian, which was compounded by the other factors in the proceedings to which I have drawn attention, makes it inevitable that the judge’s determination must be set aside.

Inevitably, in the course of identifying the flaws, as I see them to be, in the approach of the ISW and the Guardian, I have given prominence to A’s attachment to Mr and Mrs X and the ‘status quo’ in the course of my judgment. I must stress that that emphasis was entirely for the purposes of the present appeal and is not intended to offer any ‘steer’ to the judge who must now re-hear the case. The powerful countervailing factors, such as the potential for a full, life-long, relationship with siblings, must also be given full and appropriate weight by that judge.

I therefore hold that Mr and Mrs X’s appeal has succeeded with the result that the judge’s order will be set aside and the cross applications must be re-heard by a different tribunal. This court is grateful to Cobb J, as the Family Division Liaison Judge for the North East, who has agreed that, in the event of the appeal succeeding, he will conduct a case management hearing in the case on Wednesday 27^th July. By that time the outcome of the appeal and the draft judgments will be available and may be used at that hearing prior to formal handing down later in the week.

As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.

I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.

I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.

The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

I am in full agreement with both judgments.