In the matter of L (Children)

This is an application by the mother of NL, born in September 2008 and TL born in November 2011, for permission to appeal against the order of Her Honour Judge Brown of 5 August 2016 refusing the mother permission to oppose adoption applications in respect of the children. The case has been listed today for an oral permission hearing, with the substantive appeal to follow if permission is granted.

The mother is represented by Mrs Maureen Obi-Ezekpazu. The local authority, Bedford Borough Council, is represented by Mr Alex Verdan QC and Ms Ana Carvalho Gomes. The children are represented by Ms Kate Tompkins. At the conclusion of counsel’s submissions, we refused the mother permission to appeal and indicated that the reasons for that refusal would follow. This judgment now sets out those reasons.

The background to this matter is protracted, and one which paints a concerning picture with respect to delay in the resolution of the futures of the two children with which these proceedings have been concerned.

On 26 April 2013, the children were made the subject of final care orders. On 8 July 2013, the children were made the subject of placement orders. Both the final care orders and the placement orders were made by Her Honour Judge Davies. In examining the merits of the mother’s application for permission to appeal the order of Her Honour Judge Brown of 5 August 2016, it is important first to have regard to the contents of the judgments of Her Honour Judge Davies of 26 April and 8 July 2013.

On 26 April 2013 Her Honour Judge Davies concluded that the threshold criteria pursuant to s 31(2) of the Children Act 1989 were met on the grounds that the children had suffered and were at risk of suffering significant harm as result of the parents’ own experience of childhood, the violence that had taken place throughout the mother’s life, the father’s criminal history and significant history of drug and alcohol abuse, the domestic violence that had occurred between the parents and what, Her Honour Judge Davies was satisfied, was the mother’s dishonesty about her relationship with the father in early 2012.

When considering the capacity of the mother to meet the children’s assessed needs, and having heard the mother, Her Honour Judge Davies concluded that the mother did not understand the emotional damage caused to the children by her relationship with the father. Her Honour Judge Davies further noted that even though in June 2012 the mother had undertaken four of five sessions with the Freedom Project, the mother did not see why the father could not return home. Within this context, Her Honour Judge Davies found that the mother minimised the impact of her continuing relationship with the father and minimised the impact on the children of witnessing domestic violence and, specifically, an incident in December 2011 when the father was holding T in one hand and a knife to his throat in the other. During that incident, the Police had to use a Taser on the father and arrested him. N was in the house. The mother had told Her Honour Judge Davies that this incident started when she had punched the father and he had thrown her across the room.

In reaching her decision to grant final care orders, Her Honour Judge Davies had the benefit of an expert report from Dr Stevenson, a Clinical Psychologist who had assessed the mother and the father within the care proceedings. Dr Stevenson compiled a substantive report dated 12 December 2012 and an addendum report dated 4 February 2013. Copies of those reports are before this court.

In her substantive report in December 2012, Dr Stevenson opined that, as a result of her own personal history, the mother had developed an insecure attachment style, which was dependent and anxious, as well as long term personality traits of dysthymic/depressive personality and dependent personality disorders. Dr Stevenson further observed that as a result of her early life trauma, cognitive difficulties and difficulty with emotional regulation, the mother could be impulsive and had been violent with peers and in her relationship with the father. Within this context Dr Stevenson concluded that the mother’s emotional difficulties, impaired self-reference, attachment style and personality traits would make it difficult for her to respond to the changing needs of her children. In these circumstances, Dr Stevenson recommended the following treatment for the mother:

In her substantive report, Dr Stevenson made clear her opinion that careful review of these interventions would need to take place to determine whether the mother could make the changes Dr Stevenson considered were necessary in order for her to safely parent the children. Dr Stevenson also stated that should the mother not engage with the recommended interventions the children should not return to her care.

At final hearing in the care proceedings on 24 April 2013, Her Honour Judge Davies stated in terms at Paragraph [27] of her judgment that she had concluded that the mother could not meet the emotional needs of the children, particularly as the mother’s own emotional needs remained unmet. In examining the capacity of the mother to meet the identified needs of the children, Her Honour Judge Davies further stated as follows:

“[34] I take into account the capability of the mother. As is set out in Dr Stevenson’s report, the mother has significant emotional needs of her own. Dr Stevenson is clear that the mother needs about 20 sessions of cognitive behaviour therapy, possibly more. I accept the mother’s evidence that she has asked her general practitioner to refer her to CBT and that he declined. I was told that the social worker has spoken to the GP on behalf of the mother. It seems that there is now a prospect of the mother being referred, but CBT has not yet started. I accept the evidence of Dr Stevenson and the children’s guardian that CBT will be challenging and difficult. In her oral evidence the mother said that she finds it difficult to deal with issues arising from her own childhood, and that she had blocked out her memories because her life as a child was so difficult.

[35] I have no doubt her mother loves her children. She is fully committed to them. She wants to do what is best for her children. This is a very sad case as I have come to the conclusion that, however much the mother wants to care for her children, she does not have the capacity to do so. It may well be that once she has tackled CBT and gained greater insight and understanding into her own childhood and her own emotional problems, she will be in a position to build a stronger and healthier relationship with someone else who is supportive. It may well be that at that stage she might be in a position to meet the emotional needs of a child. I accept the evidence of Dr Stevenson and the guardian that, as the date of this hearing, the mother cannot do this.

[36] Should I put off making a decision to see if the identified therapy does have the effect of change for the mother that Dr Stevenson believes is necessary? I have come to the conclusion that the timescale for this is far outside the timescale for these two children. No therapist has yet been identified, and there is no starting date. There is no guarantee as to how the mother will cope with the therapy. The children’s guardian’s evidence was that in her experience CBT can take eighteen months to two years. I find that the children cannot wait that long.”

Within the foregoing context, it can be seen that in April 2013 Her Honour Judge Davies considered the fact that the mother had not yet “tackled” CBT and had not yet gained greater insight and understanding into her own childhood and her own emotional problems, and her lack of understanding as to the impact on the children of her relationship with the father, was central to her conclusion that the mother lacked the capacity to meet the needs of the children and, thus, to her decision that it was in the children’s best interests to make final care orders and approve a care plan of adoption. The final care orders were not appealed by the mother.

On 8 July 2013, Her Honour Judge Davies made placement orders in respect of each of the children. The mother did not attend that hearing, it being recorded by the learned Judge that she had not been in recent contact with her solicitors. The mother did not respond to telephone calls made by the social worker from court. In her judgment of 8 July 2013, Her Honour Judge Davies reiterated her conclusion that the mother would need a lengthy period of therapy before she would be in a position to care for the children and that the same was outside the timescales for each child. Once again, the placement orders made by Her Honour Judge Davies were not appealed by the mother.

On 20 August 2013, the local authority took the decision to place the children with their current prospective adopter. The children were placed with their prospective adopter on 12 September 2013. The application by the prospective adopter for adoption orders in respect of the children was lodged in August 2015. Between the date of the placement of the children and the application for adoption orders, work was undertaken with N to address her emotional needs, comprising seventeen sessions of life story work with a psychotherapist and a programme of ‘Theraplay’. I will return to this subject later.

Following the application by the prospective adopter for adoption orders in respect of the children, the mother lodged her application for permission to oppose the making of adoption orders on 24 September 2015. Accordingly, as at the date the mother’s application for permission to oppose the adoption the making of adoption orders, the children had been placed for adoption for over 2 years.

Somewhat unusually, the mother’s application for permission to oppose the making of adoption orders was heard over the course of two full days on 11 and 12 July 2016, with oral evidence from, and cross examination of the social worker, the mother and the Children’s Guardian. As Her Honour Judge Brown noted in her judgment of 5 August 2016, the court allowed a great deal of latitude for the various issues arising from the mother’s application to be investigated at the hearing of that application.

It will be noted that the final hearing of the mother’s application for permission to oppose the making of adoption orders was held some 10 months after that application was issued. The reasons for this extremely unfortunate delay appear to be rooted in difficulties in the mother securing legal representation and difficulties with the availability of the Children’s Guardian. However, of particular note is the reason for a further adjournment of the final hearing of the mother’s application that was granted on 13 June 2016.

On that date, the mother, who was by then represented by Ms Obi-Ezekpazu, sought an adjournment to enable her to file and serve a report from her therapist regarding her engagement with the CBT that had been recommended by Dr Stevenson in December 2012. On 13 June 2016, Her Honour Judge Brown acceded to the mother’s application for an adjournment and made the following direction:

“There be permission for the mother to file and serve by 4pm on 20 June 2016 either a letter or a report from her therapist Adriana Cracknell as to her engagement with CBT and the need for further therapy as recommended by Dr Stevenson during the care proceedings.”

The fact that the mother sought, and the court acceded to an adjournment in order to permit the mother to secure evidence as to her engagement with CBT speaks to the importance both the mother and the court attached to the question of the mother’s compliance with the recommendations of Dr Stevenson in the context of the mother’s application for permission to oppose the application for adoption orders and, specifically, to the task of determining whether there had been a change of circumstances. Indeed, in her judgment of 5 August 2016, Her Honour Judge Brown observed as follows:

“I emphasise that giving the mother opportunity to file evidence from her therapist was one of the key reasons for allowing this adjournment, as all parties recognised that mother’s engagement in therapy was of particular importance, when considering any changes mother has made.”

In her judgment of 5 August 2016, the learned Judge goes on to record that despite the adjournment on 13 June 2016, and the mother having further time as the result of a further adjournment for different reasons on 23 June 2016, as at the date of the final hearing of the mother’s application for permission to oppose the making of adoption orders she had not filed a letter or a report from her therapist.

As I have noted, Her Honour Judge Brown handed down her reserved judgment on 5 August 2016. The learned Judge begins by setting out the procedural history of the case, including the fact that the court had permitted the mother to file evidence as to her engagement with CBT and the need for further therapy as recommended by Dr Stevenson but that no such evidence had been forthcoming from the mother.

The learned judge then turned to consider the previous proceedings and contents of Dr Stevenson’s report in those proceedings. Within that context, the learned Judge noted the following matters, quoting directly from the report of Dr Stephenson that had been before Her Honour Judge Davies:

“[7.85] [The mother] has been exposed to domestic violence in her own childhood between her parents, has been violent in relationships with peers in her school years and been victim/perpetrator of domestic violence in her relationship with [the father]. Individuals who have not processed their exposure to violence as a child, and continue to present with this as a difficulty in relationships throughout their child / adult years, are more vulnerable to experience domestic violence in the future.

[7.86] Childhood trauma and attachment difficulties can negatively affect an individual’s emotional and social development, therefore, making it harder to process future stressful events and less likely that they will seek help from others (Howe et al. 1999).

[7.87] However, currently, [the mother] reports not having received appropriate interventions and only beginning to appreciate some of the content that such work could involve. Unfortunately, the court bundle held no further information regarding resources that have been open to [the mother] to date. Therefore, it is possible that, with appropriate input, [the mother] would not repeat the cycle of domestic violence in her relationships.”

And, in what Her Honour Judge Brown described as a key passage in Dr Stevenson’s report, the learned Judge quoted the report as follows:

“[7.139] It is suggested that [the mother] be supported to receive appropriate interventions to establish change. These include Cognitive Behavioural Therapy and attendance at the Freedom Project (or a similar programme). Her motivation to attend, attendance rate, progress in sessions and outcomes should be carefully reviewed.

[7.140] [The mother] would also benefit from networking in groups for parents with a pre-school school child that she could attend with T, regarding their mutual social development. It is suggested that careful review of these interventions take place to inform whether [the mother] is able to make changes for her to safely parent the children. Should [the mother] not engage with interventions it is suggested that the children do not return to her care”.

These passages fall to be read in the context of Dr Stevenson making clear in her original report that at least twenty sessions of CBT would enable the mother to manage her feelings related to depression, anxiety and previous traumas and to reflect on her feelings, thoughts and behaviours, as well as to recognise symptoms and difficulties in the future.

The learned Judge then goes on in her judgment to consider the judgment of Her Honour Judge Davies. In particular, the learned Judge quotes the first two paragraphs from Her Honour Judge Davies’ judgment that I have set out at Paragraph 10 above, describing those passages as “two of the key passages” in the judgment of Her Honour Judge Davies. The learned judge then quotes the third paragraph from the judgement of Her Honour Judge Davies that I have set out at Paragraph 10 above, noting that that passage “demonstrates the importance of the mother undertaking therapy.”

Turning to consider the application then before her, in reciting the evidence she had heard, the learned Judge proceeded to give detailed consideration in her judgment to (a) the matters that the mother submitted comprised the change in her circumstances and (b) the matters the mother submitted comprised the change in the children’s circumstances, since the making of the placement orders on 8 July 2013.

With respect to the first aspect of contended for change, the learned Judge records clearly those matters the mother submitted constituted a change of circumstances and the evidence in respect of them. Namely, (a) that she had separated and remained separated from the father, (b) she had formed a new relationship that had subsisted for three years without domestic violence, (c) that her support network had become stronger, (d) that she had obtained employment that carried with it a degree of responsibility and that (e) she had completed five sessions of CBT before, on the mother’s case, being informed by her therapist that her therapist did not think she needed any further sessions.

Within the context of the passages of the judgments of Her Honour Judge Davies that I have recounted above, the learned Judge dealt in detail and with considerable care in her judgment with the issue of the mother’s compliance with Dr Stevenson’s recommendations and the evidence relevant to that issue. In particular, Her Honour Judge Brown recorded in her judgment the following relevant matters:

With respect to the second aspect of the change of circumstances contended for by the mother, namely the alleged change in the children’s circumstances since the making of the placement orders, Her Honour Judge Brown recorded in her judgment the following relevant matters:

Having given herself what is a commendably comprehensive and accurate self-direction on the law she was required to apply, the learned Judge then proceeded to set out her detailed reasons for dismissing the mother’s application.

Her Honour Judge Brown rightly gave the mother credit for the changes she had made in her life since the granting of the placement orders, in particular her continued separation from the father, her new long-term relationship, her employment, her undertaking 5 sessions of CBT and her undertaking part of the Freedom Programme and broadening and strengthening her support network.

However, the learned Judge also made clear her view that the question of whether the mother had undertaken sufficient work to address her own emotional needs, as recommended by Dr Stevenson, was central to determining the mother’s application. In this regard, the learned Judge again reminded herself of the finding of Her Honour Judge Davies that the mother could not meet the emotional needs of the children due to her own personality difficulties and that Her Honour Judge Davies had stressed the importance of the mother undertaking CBT. The learned judge then repeated Paragraphs [7.139] and [7.140] of Dr Stevenson’s report that I have set out at Paragraph 21 above (it is clear that the learned Judge’s reference to “key passage in the judgment” at this point is a typographical error and should read “key passage in the report”). The learned judge further reminded herself that the mother had not produced the evidence the court directed to demonstrate that she had been told by Ms Cracknell that CBT was no longer required.

Within this context, the learned Judge concluded that the mother knew, or should have understood the importance of completing CBT and that the mother’s case for why she had not completed CBT was not made out. Within this context, the learned judge further determined as follows:

“In my judgment, mother has not sufficiently demonstrated that she has understood why the recommendation for CBT was made in the first place and why the production of evidence to show that mother undertook the work, engaged and benefited from the work is so important. Whilst it is argued by Mrs Obi-Ezekpazu that mother has amply demonstrated sufficient positive change through her lifestyle choices, in my judgment this is not sufficient given the level of concern about mother’s ability to protect her children and the personality difficulties described by Dr Stevenson. Without evidence of successful engagement in the recommended therapy, in my judgment, although there have been some positive changes, they are not sufficient to meet the test required under stage one of the two stage test.”

Finally, the learned judge also went on to consider the second stage of the test to be applied when determining the mother’s application for permission to oppose the making of adoption orders in the event that she was wrong in her conclusions regarding the first stage. Having regard to the evidence before her, the learned judge concluded that it would not be in the children’s best interests for the mother to be given permission to oppose the making of adoption orders and that the mother had no realistic prospect of successfully opposing the adoption orders. For the purposes of determining the application for permission to appeal it is not necessary to look in detail at the judge’s reasoning on this point.

The mother issued her Notice of Appeal on 23 August 2016. The Notice was supported by eleven grounds of appeal drafted by Mrs Obi-Ezekpazu. The first five grounds and ground eleven assert, in sum, that s 47 of the Adoption and Children Act 2002 is unlawful based on a contended for incompatibility with the ECHR and accordingly the learned judge was wrong to conclude that the mother needed permission to oppose the adoption application and wrong to apply s 47 of the 2002 Act. Grounds six to ten assert, in sum, that the learned judge was wrong to consider the evidence before the court to be reliable, and to conclude on that evidence that there was no change of circumstances that met the first leg of the test under s 47 of the Act and, further, that the learned judge fell into error when she applied the prospect of success test contrary to the principles articulated in Re B-S [2013] EWCA Civ 1146 at [74(i)].

The procedural history of the appeal is somewhat protracted. On 16 November 2016 McFarlane LJ refused permission on paper. With respect to the grounds contending that s 47 of the Adoption and Children Act 2002 is unlawful based on a contended for incompatibility with the ECHR and accordingly the learned judge was wrong to apply it, McFarlane LJ dismissed those grounds as misconceived and having no prospect of success, and set out his reasons for so doing. With respect to the grounds that contended that the learned judge was wrong to consider the evidence before the court reliable, and to conclude on that evidence that there was no change of circumstances and that the learned judge fell into error when she applied prospects of success test, McFarlane LJ was again satisfied that those grounds had no prospects of success. Specifically, McFarlane LJ concluded that the learned judge had given herself an impeccable self-direction on the law before correctly applying the law to the evidence. He was entirely satisfied that the learned judge was fully entitled to conclude that the evidence with respect to the mother’s engagement with CBT fell well short of that which had been identified as being required on the expect evidence.

The mother, as she was then under the rules entitled to do, renewed her application for permission to appeal orally. On 22 December 2016, the matter came before the Senior President of Tribunals who adjourned the oral application and directed transcripts of evidence of the allocated social worker and the Children’s Guardian. The Senior President of Tribunals further directed that the mother obtain a report from Ms Cracknell setting out the nature and extent of the therapy she provided, her opinion as to the success of the therapy and whether the balance of the twenty sessions recommended by Dr Stevenson are still required, with reasons for completion or against completion. The Senior President of Tribunals also gave the mother permission to obtain a statement from Sarah Lowe, a social worker who was supporting the mother in a personal capacity. Finally, the Senior President of Tribunals gave the local authority permission to attend the adjourned permission hearing if so advised.

At the adjourned permission hearing on 17 February 2017, the Senior President of Tribunals heard submissions from counsel for the mother and counsel for the local authority. Judgment was adjourned pending the receipt of a statement from the mother exhibiting to it emails from Ms Cracknell in November 2015 relating to CBT sessions offered and undertaken, and a statement from the local authority. The statement from the local authority was required to set out whether the local authority was in receipt of the April judgment of Her Honour Judge Davies as at the date the mother’s application for permission to oppose the adoption application was made, whether the social worker had read the judgment when responding to the mother’s application and, if not, on what basis the allocated social worker completed her enquiries and produced a statement in opposition to the mother’s application.

The Senior President of Tribunals handed down judgment on the mother’s oral permission application on 15 March 2017. He confirmed the refusal of permission to appeal on grounds one to five and eleven, relating to the contention that s 47 of the 2002 Act is incompatible with the mother’s ECHR rights. With respect to the grounds asserting, in sum, that the learned judge was wrong to consider the evidence before the court reliable, and to conclude on that evidence that there was no change of circumstances and that the learned judge fell into error when she applied the prospect of success test, the Senior President of Tribunals adjourned the permission application to a full court. In doing so, he observed that he considered it difficult to say that anyone had analysed what purpose the twenty sessions of CBT were intended to achieve and whether by passage of time, counselling and other life changes that purpose had been satisfied or was no longer relevant. The Senior President of Tribunals was troubled that the learned judge had not directed an assessment of the mother.

In listing the mother’s permission application before a full court, the Senior President of Tribunals gave the mother permission to rely on the following items of fresh evidence:

At the conclusion of his judgment, the Senior President of Tribunals also indicated that the local authority could consider its position if it concluded, having received the judgment, it should have conducted an assessment of the mother to inform the determination of the mother’s application for permission to oppose the making of adoption orders by returning to Dr Stevenson. Following those observations, the local authority did commission a further assessment by Dr Stevenson. Accordingly, also before the court is an addendum report from Dr Stevenson on the mother and the two subject children. In addition, the court has before it the report of an independent social worker on the mother and her new partner concerning the mother’s new child. At the commencement of the hearing the local authority applied to admit these assessments as fresh evidence and we granted that application.

Within the foregoing context, five grounds of appeal are now before the court for consideration. Those grounds are that:

Whilst the Senior President of Tribunals was concerned that Her Honour Judge Brown may have reached her conclusion without adequate up to date expert evidence on the question of whether the mother had managed to effect sufficient change, Mrs Obi-Ezekpazu confirmed to this court that she did not now seek to suggest that the judge was wrong to proceed without a further expert report from Dr Stevenson. Instead, Mrs Obi-Ezekpazu concentrated her attack on the assertion that the judge was wrong to conclude, on the evidence then available to her, that there had been no change of circumstances sufficient to re-open consideration of adoption. In this regard, Mrs Obi-Ezekpazu mounted three main submissions in an effort to make good her argument.

First, and within the context of her submission that the evidence of the social worker and of the Children’s Guardian was deficient, Mrs Obi-Ezekpazu submitted that the learned judge placed too much reliance on the fact that the mother had not completed twenty sessions of CBT. At the heart of Mrs Obi-Ezekpazu’s submission was the contention that the learned Judge had before her evidence that demonstrated the mother had been told that she no longer required, and in fact no longer required CBT and that, accordingly, the centrality that the issue may have had in the proceedings before Her Honour Judge Davies in 2013 had receded by 2016. Within this context, Mrs Obi-Ezekpazu contended Her Honour Judge Davies was wrong to attach to it the weight that she did and to have accepted the evidence of the social worker and the Children’s Guardian in this regard, which evidence was in any event deficient. In this regard, Mrs Obi-Ezekpazu relied on the short report from Ms Cracknell as evidence that the mother no longer required CBT in order to make good her submission.

Second, and within this context, Mrs Obi-Ezekpazu submits that the court’s focus on the CBT as the “benchmark” from which change was to be measured caused the Judge to attach insufficient weight to other changes that Mrs Obi-Ezekpazu submitted “have been identified and proven solid”. Ms Obi-Ezekpazu submits that the learned judge should have attached far greater weight to these matters, especially given, as Ms Obi-Ezekpazu would have it, the receding importance of CBT.

Third and finally, Mrs Obi-Ezekpazu submitted that the learned Judge, both by focusing too heavily on the CBT as the “benchmark” from which change was to be measured and in any event, failed to attach sufficient weight to what she submits is the “self-evident” inability of the proposed adopter to meet the emotional needs of the children, as demonstrated by the fact that therapeutic intervention was required by N, which inability Mrs Obi-Ezekpazu submits amounts to a change of circumstances.

As I have noted, Mrs Obi-Ezekpazu argued as her final ground that the judge applied the wrong test in respect of prospects of success. Mrs Obi-Ezekpazu submitted that the points during her judgment at which the learned Judge examined the impact of removing the children from the proposed adopter demonstrated that, rather than considering the mother’s prospect of opposing the making of an adoption order, the learned judge was considering the prospect of the mother ultimately having the children restored to her care, thereby applying the wrong test having regard to the judgment of My Lord, The President in Re B-S at [74(i)].

The appeal is resisted by the local authority and by the Children’s Guardian. On behalf of the local authority, Mr Verdan and Ms Carvalho Gomes submit that the learned Judge was perfectly entitled to come the conclusion on the evidence before her that there had not been a sufficient change of circumstances to justify the re-opening of the question of adoption. Mr Verdan and Ms Carvalho Gomes point to the fact that, within the context of the learned Judge correctly identifying the central importance of the intervention recommended by Dr Stevenson to the question of whether the mother could meet the children’s needs, as at the date of the hearing before the learned Judge, the mother had not only failed to complete CBT but had completed none of the recommendations of Dr Stevenson.

Within this context, Mr Verdan and Ms Carvalho Gomes also prayed in aid the recent report of Dr Stevenson, which they contend confirms the evidence the learned Judge heard from the social worker and the Children’s Guardian, and bears out the learned Judge’s conclusions in their entirety. Mr Verdan and Ms Carvalho Gomes point out that that report confirms that the passage of time has not created any or any sufficient change and continues to recommend the completion of at least twenty sessions of CBT, a full psychoeducation programme regarding domestic abuse, couples therapy and support from adult learning services. The local authority submits that the addendum report of Dr Stevenson likewise bears out the learned Judge’s conclusion that the circumstances of the children did not constitute a change of circumstances. Mr Verdan and Ms Carvalho Gomes submit that it is plain on the face of the learned judge’s judgment that she did not misapply the prospects of success test. On behalf of the children, Ms Tompkins endorsed the submissions of the local authority.

The legal principles that were applicable to the decision Her Honour Judge Brown was required to take are not in any way controversial. The Adoption and Children Act 2002 s 47 provides as follows:

The illumination of the approach to determining an application of s 47(5) of the 2002 Act that the learned Judge was required to take does not require the extensive citation of authority. As I have noted, it was clearly and comprehensively set out by My Lord, The President in the case of Re B-S [2013] EWCA Civ 1146 as follows:

“73.

There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.

74.

In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i)

Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent's care.

ii)

For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other. 

iii)

Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the "last resort" and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible. That said, the child's welfare is paramount.

iv)

At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.

v)

This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.    

vi)

As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.

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, 129, 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: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix)

Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x)

We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: "the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable."

Having considered carefully the submissions of the parties, and the documents lodged in support of her appeal, I am satisfied that the mother’s appeal has no prospect of success and that permission to appeal should, accordingly, be refused. My reasons for so deciding are as follows.

On the evidence available to her, the learned Judge was perfectly entitled to conclude that the mother had not completed the interventions recommended by Dr Stevenson. With respect to the Freedom Project, Couples Therapy and attendance at groups for adults with verbal learning difficulties, the mother’s own evidence was that she had not engaged with, and completed these interventions. With respect to CBT, the learned judge was perfectly entitled also to conclude on the information available to her that there had been no successful engagement by the mother in the CBT recommended by Dr Stevenson.

Whilst Ms Obi-Ezekpazu relied on the assertion that the mother had been told by her GP that she did not need CBT, and criticises the learned Judge for not giving this fact more weight, this is plainly not the whole picture. Her Honour Judge Davies made plain in her judgment in April 2013 that after the initial scepticism by the GP, contact with the social worker resulted in the prospect of a referral being made. Here Honour Judge Brown was plainly cognisant of this point and in her judgment specifically sets out the mother’s evidence on this point and that when pressed in this regard, the mother confirmed a referral had been made but that she did not know why it had been progressed. In this context, I note that in Dr Stevenson’s recent report, the mother is recorded as telling Dr Stevenson that her GP referred her for CBT after the final hearing in 2013 but she did not pursue it as she thought “what’s the point to it”.

With respect to the mother’s assertion that she had been told by Ms Cracknell that she did not need CBT, the learned judge was entitled to conclude that that assertion was not made out in the absence of evidence to prove that assertion. It is beyond dispute that, despite a direction made by the learned judge permitting the mother to file evidence from Ms Cracknell supporting the assertion that Ms Cracknell had told the mother she did not need CBT, the mother did not do so. It was for the mother to prove the requisite change of circumstances. Notwithstanding this, the mother did not place evidence before the court to prove the assertion she was contending for. In the circumstances, the learned judge was perfectly entitled to conclude that that assertion had not been made out.

Whilst Ms Obi-Ezekpazu asserts that the fresh evidence permitted by the Senior President of Tribunals does make good the mother’s assertion to the learned judge that Ms Cracknell had informed her she did not now need CBT, I am satisfied that the fresh evidence cannot bear the weight of that assertion.

The emails from Ms Cracknell of October 2015 relied on by the mother demonstrate that it was Sarah Lowe rather than the mother who approached Ms Cracknell in respect of therapy. The date of the first email on 17 October 2015 also demonstrates that the approach to Ms Cracknell was made some three weeks after the mother had lodged her application for permission to oppose the adoption application. In her second statement in support of her application for permission to oppose the making of adoption orders, dated 2 November 2015, the mother stated that she intended to complete the CBT course with Ms Cracknell by 17 December 2015, but that Ms Cracknell had said she might not need many sessions as “I seem to be coping very well and do not have any current difficulties”. In her email dated 26 November 2015, Ms Cracknell observed that “I have explained to [the mother] that in order to initiate CBT I first need to identify what her thought patterns are that need changing and then initiate those changes”. It is plain from the email sent by Ms Lowe that elicited that response from Ms Cracknell that at that time the mother had had three sessions with Ms Cracknell and that, to the mother’s understanding, those sessions did not involve CBT. It is within this context that Ms Cracknell indicated her view to Sarah Lowe in her email dated 26 November 2015 that due to the time span between Dr Stevenson’s report and the counselling starting, the mother is “no presenting with these issues any longer”.

In her short report dated 9 January 2017, Ms Cracknell confirms that the mother went to her following the recommendation for CBT. The report states that, “We were unable to identify what needed addressing and changing. There she had person-centred therapy for five sessions”. However, with respect to the sessions, the report of Ms Cracknell also states that “Whether she has 20 sessions or not, the process is dependent on the client’s commitment and approach to the therapy, their understanding of what therapy is and how it works. This was not evident in the few sessions we had.” Within this context, it is also of note that in her recent report, Dr Stevenson records the mother as claiming that Ms Cracknell told her she did not need CBT, but also that Ms Cracknell did not advise her which therapeutic approach she would utilise, was reluctant to report to the court and had “hung up the phone on me”.

On the evidence then available to her in July 2016, the learned judge was entitled to find that the mother had not engaged in CBT as recommended by Dr Stevenson. Whilst there is some evidence in the fresh material before this court that Ms Cracknell was uncertain, or unable to ascertain from her perspective whether and to what extent the mother required CBT in 2015, that new material comes nowhere close to demonstrating that the mother received authoritative confirmation from a professional fully versed in the recommendations of Dr Stevenson that, contrary to the previously expressed view of Dr Stevenson, she no longer required CBT, nor close to undermining the conclusion of the learned judge that there had been no successful engagement by the mother in the CBT recommended by Dr Stevenson. In addition to the matters set out above, the learned judge also had evidence that the mother did not accept the need for care and placement orders having been made in the first place.

Within the foregoing context, and on the evidence available to her, there is also no basis on which to fault the learned judge’s conclusion that the mother’s failure to complete the course of CBT recommended by Dr Stevenson was central to the question of whether the mother had demonstrated a change of circumstances for the purposes of s 47(5) of the Adoption and Children Act 2002, having regard to the original report of Dr Stevenson and to the 2013 judgments of Her Honour Judge Davies and to the evidence available to the learned judge at the final hearing of the mother’s application in July 2016.

Dr Stevenson made clear in her December 2012 report that the parental deficits that prevented the mother from meeting the needs of the children were grounded squarely in the mother’s emotional difficulties, impaired self-reference, attachment style and personality traits. Within this context, Dr Stevenson further made plain that the completion of the interventions recommended, and in particular CBT, was central to the mother making the changes required to be in a position to meet the assessed needs of the children. Her Honour Judge Davies accepted this evidence and made findings accordingly. Her Honour Judge Brown makes clear in her judgment that she paid very careful regard to these matters. Beyond this, and within that context, the learned judge had available to her at the final hearing of the mother’s application, the evidence of both the social worker and the Children’s Guardian that the extent to which the mother had completed the interventions recommended by Dr Stevenson was central to the question of whether she had demonstrated a change of circumstances. This evidence was extensively challenged and the learned judge evaluated it carefully in her judgment.

Within this context, the totality of the information before the learned Judge demonstrated that the issue of the extent to which the mother had engaged with recommended therapeutic interventions to address those aspects of her psychological functioning fundamental to her capacity to meet the needs of the children was indeed central to the question of change of circumstances for the purposes of s 47(5) of the Act. In the circumstances, there is no proper basis for suggesting that the learned Judge was wrong to focus on the extent to which the mother had complied with interventions recommended by Dr Stevenson, and in particular the CBT, as the primary benchmark against which a change of circumstances fell to be measured.

With respect to the other indicia of change presented to the learned judge by the mother, within the foregoing context the learned judge was plainly entitled to conclude that, whilst admirable, the changes made by the mother in other areas of her life did not amount to a change of circumstances for the purposes of s 47(5). None of those important changes dealt with what, on all the evidence before the learned judge and on the findings made by Her Honour Judge Davies, was the fundamental issue affecting the mother’s ability to meet the needs of the children.

Whilst Ms Obi-Ezekpazu sought to present therapeutic intervention for N as evidence of a weakening placement likely to disrupt, it is plain on the evidence before the court, and in particular from the social worker and the Children’s Guardian, that it was no such thing. Notwithstanding the criticisms mounted by Ms Obi-Ezekpazu against it (including an entirely unjustified assertion by Ms Obi-Ezekpazu that the evidence of the Children’s Guardian was “biased”), that evidence was born out of careful assessment by the social worker and the Children’s Guardian. The judge was perfectly entitled to conclude on the evidence, as she did, that the therapeutic intervention for N was consistent with task of settling a child into an adoptive placement having regard to the difficulties in her family life that had led to her being removed from her parents. Within this context, the learned Judge was entitled to find that the position of the children as at the date of the hearing in July 2016 did not constitute a change of circumstances for the purposes of s 47(5) of the 2002 Act.

In the foregoing circumstances, with respect to Grounds 6 to 9, I have no hesitation in concluding that there is no proper basis for asserting that Her Honour Judge Brown did not have before her the evidence she required to determine the mother’s application for permission to oppose the making of adoption orders and no proper basis for asserting that she was wrong to conclude that the mother had not demonstrated to the court, as she was required to do, a change of circumstances for the purpose of s 47(5) of the 2002 Act.

With respect to Ground 10, I am also satisfied there is no proper basis for arguing that the learned Judge applied the wrong test when considering the mother’s prospects of success in opposing the application for adoption orders. As I have already noted, Her Honour Judge Brown gave herself an admirably comprehensive and accurate self-direction on the law, making clear that these were the principles that she applied when determining the mother’s application. Whilst Ms Obi-Ezekpazu seeks to argue that the learned Judge applied the wrong legal test by conflating the prospects of the children returning to the mother’s care with the prospects of successfully opposing the adoption application, it is clear from her summary of the law and from the penultimate paragraph of her judgment that this was not the case. In the penultimate substantive paragraph of her judgment, the learned Judge expressly stated that “I do not consider that the mother has any realistic prospect of successfully opposing the adoption order”. Applying the test to the evidence before her, the learned Judge was fully entitled to conclude that the mother had no prospect of successfully opposing the adoption order for both children.

Finally, whilst it has not proved necessary in reaching the conclusions set out above to make significant reference to the contents of the updated report of Dr Stevenson, it requires to be noted that the conclusions of the report that the local authority chose to commission following the observations of the Senior President of Tribunals tends to corroborate strongly the learned judge’s conclusion that the mother had not, as at the date of the hearing in July 2016 made progress on the key issues affecting her parenting capacity sufficient to amount to a change of circumstances for the purposes of s 47(5). Indeed, Dr Stevenson’s report suggests that the mother remains, sadly, dismissive of the need for the interventions Dr Stevenson continues to assert she needs, including at least twenty sessions of CBT, in order to address the consequences of her own developmental trauma and abusive relationships.

For the reasons I have given, I am satisfied that there is no prospect of the mother successfully appealing the decision of Her Honour Judge Brown and accordingly I refuse her application for permission to appeal.

I agree.