T (A Child: Refusal of Adoption Order), Re

namely that the evidence must be apparently credible though it need not be incontrovertible.

“Within our family culture, titles are assigned based on relationships and position and not solely on age, legal or biological ties. Hence, consistent family members and close family friends have taken ongoing roles as “grandparents”, “uncles”, “aunties” and “cousins”. For example, [S} is our grandchild and [C]’s 22-yearold legal cousin however takes the role and title of uncle; ………. and [the mother]’s legal step-father and has taken this role for over 20 years, albeit he is only 3½ and 6 years respectively older. [The mother] does not refute our position in her statement, nor that this is [C] and her own family’s race, culture and identity. Our long established complex family configurations are explained to all openly and honestly without surprises. They are understood and easily explained by family members including the children. They reflect southern African cultural norms and family constructs, significantly differing from traditional English family structures . Our family establishment has been highlighted by professionals as strongly supporting [C]’s ability to develop his own identity and belonging and critical to enabling his sense-making of his life story. As our adopted child [C] nor any other family member would refer to [the mother or her sister]….. as his sibling, as he will not be, and there are neither circumstances where such legal definitions will be required. It is clear within our family that [C] does not as yet have any siblings, albeit we are considering adopting a younger child/baby from outside the family to be raised alongside him as a sibling. Following [C]’s adoption (if our application is successful), our family relationships, enacted roles and titles will remain as they have been assigned. As such adoption cannot skew relationships or family dynamics, they are different already, and are not wrong. [The mother] is

[C]’s mother and is referred to him in an age appropriate way, currently as his ‘Tummy Mummy”. [C] will also know, as does the whole family, that [the mother] is [the grandmother]’s daughter and is his mother, although she does not parent him. [The mother] is and will always be part of our and [C]’s family and world, although he has only seen her at birth and may not be able to have any contact with her, as given the risks, are neither the other children in the family able to. We have always strongly encouraged this approach as being in [C]’s best interest, for example [the mother] saw [C] twice at the time of birth, on our insistence as we were mindful of the relevance of this to his life story. Our approach reflects the lengthy discussions and advice received from social services on this matter since

[C]’s birth to date, so that he is safeguarded and understands his family story in an age appropriate way, whom we are to him and why he does not live with his biological mother and father. [C] does not have a legal father and all attempts to identify his biological father have proven unsuccessful. Only adoption will provide [C] with a legal father. If adopted, [C] will gain a legal father whom will be one of his primary carers and his main male, African/black (of a similar racial ethnicity as [C]) positive role model.”

that the step-grandfather was a ‘bastard’ and a ‘paedophile’ and she smashed windows in the family home and in the family car.

“I told [the mother] that she should not be calling me and as soon as I said this,

[the mother]’s tone switched and she became very angry. All of a sudden she completely lost it and shouted a barrage of abuse, for example she called me a

“fucking stinking bitch”. She started screaming down the phone; I recall her saying “Where’s my son?”, “He’s my son”, “I am [C’s] real mum”, “I am his real Mum”,

"Where’s [the grandparents]”, “Where’s Mum”, “where is he, where is my son”, “They’ve no right to him, I’m gonna get him back, he’s mine”, [the stepgrandfather]’s a bastard” and “They’re greedy, they just want to steal him away”. I initially attempted to reason with [my sister] and try and explain to her that this behaviour was not fair on [C] and that it is extremely stressful for the whole family. She said that she didn’t care and that “He’s my fucking son”. There was nothing I could say after this as [the mother] would not let me get a word in. This continued for some minutes; during the call I received a text from my parents saying that they were outside. They did not ring the doorbell as I had asked them not to as this would make me panic, so when I received the text I went and opened the door for them. [The mother] would not have known that they had turned up at the house during the call. [She] continued to shout the same abuse at me down the phone and also said “I am not your fucking sister”. She also made several threats to my life and said “Fucking tell me where they are, tell me where he is, he’s mine, I’m gonna get him back, I’m gonna fucking kill you”. [The mother] went on to say that [the grandparents] are breaking the law, and she continued to call [the stepgrandfather] a “Fucking bastard”. During the call, [the mother] was asking me where [the grandparents] are; I do not know whether she had attended [their] address to look for them first, there was just no way of me knowing. The call felt like it went on for much longer than it did but it would not have been more than 3 to 4 minutes. She became uncontrollably angry and eventually, [the grandmother] suggested that I should end the call as it was very upsetting. I wasn’t able to deal with it any longer. After I ended the call, I was extremely shaken and worried about what [the mother] would do next. It was an incredibly traumatic day for me, but I think it was a lot worse for [the grandparents] as they, and [C], are always [her] main target. I also asked [the grandmother] to stay the night with me as I didn’t want to stay by myself.”

“ Having considered this case carefully, I do not consider that an adoption order is necessary or proportionate. This is not a “nothing else will do” situation. The special guardianship order has worked well. The applicants have been able to meet

[C]’s needs under the special guardianship order. He is thriving in their care.”

“36. There is no real dispute about the applicable law.

37.Any order should be the least interventionist order that meets the child’s welfare needs.

38.The welfare checklist in s.1(3) of the Children Act 1989 and s.1(4) of the Adoption and Children Act 2002 must be applied. In particular, the likely effect on a child throughout his life of being adopted has to be considered including his relationship with his birth mother. In this case, [C] will continue to live within, and be a member of, his birth family. Consideration has to be given to whether the relationships within the family will be skewed by an adoption order.

39.The child’s welfare throughout his life is the court’s paramount consideration.

40.In considering the two different options (adoption order or continuing special guardianship order), the court should not knock out one option but must consider them side-by-side. The court has to balance one against the other, considering the advantages and disadvantages in each option and decide which option is best for the child.

41.The court has to be satisfied that nothing else will do before making an adoption order.

42,[C], his mother and the applicants have article 8 rights to a private and family life. Those rights can only be interfered with if it is necessary, proportionate and in the best interests of the child. The need to safeguard a child’s welfare justifies interfering with the parties’ article 8 rights.”

“25.Dr McEvedy prepared a psychiatric report dated 29 November 2019 of the mother. He considers that there is support for a diagnosis of relapsing psychosis (history of relapsing serious mental illness leading to repeated detained admission to hospital, deterioration in prison when non-compliant with antipsychotic medication for a prolonged period and her own description of hearing hallucinatory voices as well as a paranoid element to her thinking). He referred to the mother’s history of substance misuse including long-term use of cannabis, crack cocaine in recent years and spice during her most recent period of imprisonment. He referred to the mother’s extensive history of convictions as well as her lack of remorse (including at his interview with her) for previous aggressive behaviour including towards her own mother (one of the applicants). Dr McEvedy considers that there also appears to be an antisocial personality element [E75]. He states that the prognosis for the mother is uncertain given her history of repeated hospitalisations [E76]. He reports that there are various features (including disturbed mental state and behaviour in recent years, imprisonment and hospitalisation) to indicate that the mother’s problems of extreme emotional variability, impulsivity and poor control of frustration, as well as potential for aggression to others, remain

[E76]. Dr McEvedy’s opinion is that the mother has demonstrated by her conduct towards her own mother (including threats), as well as repeated breaches of the restraining order and criminal damage to the applicant’s property (the mother admitted during his interview with her that she had thrown a brick through the applicants’ window in 2017), as well as her ill feeling towards her step grandfather (one of the applicants), that there is some enduring risk to them. Whilst Dr McEvedy accepts the mother’s account that she would never intentionally harm a child, his view is that her degree of behavioural disturbance, including aggression, at times must be seen as posing a risk to a child, particularly when her thoughts and feelings around him and his care and her lack of contact with him are so highly emotionally charged [E76].”

had been set out on their witness statements. The judge explained her reasons for not accepting the conclusions of the social worker in these terms:

“51. Ms Speke is a fair, compassionate and child focussed professional. I have no doubt that she will treat the mother fairly. I do not, however, agree with her conclusion that an adoption order is necessary or proportionate in this case. It may bring some benefits but it will not reduce the risks, it will not stop the mother making applications if that is what she decides to do and it will not improve the love, support and care that [C] is already enjoying. It will remove the only remaining relationship between [C] and his birth mother. Relationships will be skewed, generations unnecessarily recast and [C] will be left wondering why his grandparents had to legally replace his mother.”

This is the only part of the judgment where the judge referred to the fact that one consequence of making an adoption order was that C would have a legal father, the step-grandfather. This issue does not feature in the welfare analysis which the judge undertook later in her judgment.

“65. [C] is benefitting from consistent, safe, secure and reliable care. The applicants have a high level of insight and are ensuring that he grows up knowing who the people in his family are. They are being honest with him about who his “tummy mummy” is. He is being brought up within his birth family and his cultural needs are being met. If he is adopted, his only relationship (legal) with his mother will be cut. He has not seen his mother since he was born. His mother’s mental health difficulties, substance misuse and criminal behaviour may mean that he is unable to spend time with his mother unless she is able to make the changes that she wants and needs to make. As [C] grows up, his sense of identity will become more and more important. He will want to know who his mother is and if he is adopted he will want to know why his birth mother had to be removed as his legal mother. If he is adopted, he will grow up as the legal son of his grandparents when he was in fact born into a different generation. An adoption order in this case will add confusion in terms of identity and the necessity for an adoption order cannot be justified. It may add to [C]’s sense of loss which he is likely to feel (if not already felt) by not being brought up by, or seeing, his birth mother. He may feel further rejected by her, although it is clear to me that she loves him very much. She is very unwell and vulnerable. She has been unable to safely care for herself for some time, let alone [C].

66.In practical terms, little will change by the making of an adoption order. [C] will continue to be cared for by the applicants. They will continue to have the benefit of a life-long restraining order. The risks will not be reduced. The mother has done nothing to disrupt [C]’s placement since December 2017. She made some phone calls to the applicants in October 2018 and left a message saying: “I hope you die. You should not be looking after my child.” [H198]. However, the reality is that she agreed, and continues to agree, to the applicants looking after [C]. In her statement and letters she makes it clear that that is where [C] should live. The mother has not applied for a contact order to date and recognises that she needs to make changes before she can see [C].”

“Realistic Options

67.There are two realistic options. I have already set out some of the advantages and disadvantages in either option and this judgment must be read as a whole.”

The judge then set out the advantages and disadvantages of a special guardianship order. She considered that the main advantages were that the mother would remain as C’s mother and that C would continue to thrive in the care of his grandparents. The principal disadvantage of a special guardianship order was it had ‘less stability and permanence than an adoption order’. The judge then turned to consider the advantages and disadvantages of an adoption order in the following terms:

“Adoption Order

70.The advantages of an adoption order are that [C] would legally be the applicants’ child. He would benefit from inheritance rights and all the other benefits that come with being their legal child. His place in the applicants’ family will be more secure and more permanent and they will be his parents throughout his life, not just until he is 18 years old. The applicants look after him as his parents and he sees them as his parents. An adoption order would reflect his experience of being parented by the applicants. [C]’s allocated social worker and guardian both support the making of an adoption order. The local authority, Guardian and applicants all support the making of an adoption order. An adoption order will reduce the applicants’ anxiety and may send a clear message to the mother/set clear boundaries for her.

71.The disadvantages are that his only existing relationship with his birth mother would be severed. In legal terms, she would not be his mother. That is likely to be a profound loss for [C] during his lifetime. He may feel a greater sense of rejection. He may wonder why it was necessary for all of his ties to his birth mother to be cut. He has no relationship with his mother other than his legal relationship and that would be severed by an adoption order. His place in the family and his family relationships will be skewed. Whilst he may not sit down with a family tree and try and piece it all together, he is bound to wonder why others decided that it was necessary for his grandparents to legally replace his mother. An adoption order will not really change anything. It will not reduce the risks. It will not change his lived experience. The support, contact arrangements, need for therapeutic support and so on will not change under an adoption order. It will not simplify [C]’s life story. It will add an additional complexity because his legal relationship with his grandparents and his mother will change. Legally, he will be moved into a different generation within his birth family. Legally, his mother will be his sister. Legally, his birth family relationships will be skewed. The mother may feel a greater sense of injustice by being cut off as his mother and having her parental responsibility (and rights) removed. She may not understand the boundaries set by an adoption order. It may make the situation between the applicants caring for [C] and the mother worse. It is an unnecessary and disproportionate response to the risks and concerns, particularly when the mother has not made any application to court in the last 3 ½ years, not disrupted the placement and has not breached the restraining order for some time now. The last incident was in October 2018, now 16 months ago. It is not necessary on the facts of this case. The mother opposes the making of an adoption order.

Conclusion

72.For the reasons I have set out in this judgment, I refuse the application for an adoption order. I disagree with the professionals’ analysis of the necessity for an adoption order on the facts of this case. I also disagree with their assessment that an adoption order is proportionate in the light of the risks. This is not a case where “nothing else will do.” This has been a finely balanced decision. In my judgment, the balance falls in favour of continuing the special guardianship order. An adoption order is neither necessary nor proportionate in the short, medium or long term.”

“We respectfully disagree with Miss Henke that special guardianship orders have effectively replaced adoption orders in cases where children are to be placed permanently within their wider families. No doubt there are many such cases in which a special guardianship order will be the appropriate order, but as this court points out in para [61] and elsewhere in its judgment in Re S(Adoption Order or Special Guardianship Order), each case will fall to be decided on what is in the best interests of the particular child on the particular facts of the case. Moreover, each such decision will involve the careful exercise of a judicial discretion applied to the facts as found.[45]In the instant case, the judge’s findings of fact and his assessments of the parties are, in our judgment, not only of critical importance, but determinative of outcome. AJ had been with his paternal aunt and uncle since the age of 6 months. He and his carers both plainly need the assurance that the security of that placement could not be disturbed. That assurance could not be provided by a special guardianship order: it could only be provided by adoption.[46]The judge was, in our judgment, plainly entitled to find as a fact that the mother in particular had never given up on regaining AJ’s care. His two findings that there was a real possibility of future applications to the court, and that those applications would be disruptive of the placement were manifestly open to him on the evidence. All the expert evidence in the case, including, of course, that of Dr Banks, was to like effect. These factors are all clear pointers towards adoption.[47]In our judgment, it is no answer to assert that any application to revoke a special guardianship order and/or to seek a residence order requires the court’s permission, or that any application for permission to apply for contact and other s 8 orders can be regulated so as not to disturb the child or his carers by filtering them through s 91(14) of the 1989 Act. In situations where the parties are not in contact – where, for example, parties do not know where their former partners and their children are living – it may well be possible to direct that any application under s 91(14) shall not, in the first instance, be served on the resident parent, and that the application can thus be resolved by the court without the resident parent and the children concerned even being aware that it has been made. Such considerations do not, however, in our judgment, apply in cases such as the present where the parents of the child are having regular contact. In such cases it is unreal to suppose that Mr and Mrs Twill be unaware that AJ’s parents had made an application to the court. Even if that application stood no prospect of success and was, in the event, dismissed, the threat of disruption and disturbance would remain.”

“It is important to note also that the statutory provisions draw strong and clear distinctions between the status of children who are adopted, and those who are subject to lesser orders, including special guardianship. As we have already pointed out, the considerations in relation to adoption in the expanded checklist contained ins1ofthe2002 Act require the court to address the question of the child’s welfare throughout his life. We do not think this point needs any further explanation or emphasis. Its consequences are, however, significant.[45]Thus, although s 14C(1) of the 1989 Act gives special guardians exclusive parental authority, this entitlement is subject to a number of limitations. Attached to the skeleton argument prepared in the case of Re AJ(Adoption Order or Special Guardianship Order)[2007] EWCA Civ 55,[2007] 1 FLR 507 by Miss Lorna Meyer QC, Mr David Crowley, (the solicitor advocate for the child) and Mr Graham Jones (the solicitor advocate for the prospective adopters) was a helpful document entitled Schedule of Main Differences between Special Guardianship Orders and Adoption which set out those differences in tabular form.”

“We also respectfully agree with the judge that an adoption order in the instant case does not unduly distort the family dynamics. For the reasons which this court gives in paras [51] and [52] of its judgment inRe S (Adoption Order or Special Guardianship Order), the question of the likely distortion of family relationships by an adoption order is very fact specific, and should not be overplayed. In the instant case, AJ knows precisely who he is. He knows that his birth parents are Mr and Mrs J and that they are unable to look after him. He knows he is living with his aunt and uncle. He is not confused, nor is he likely to be in the future. What matters for him is that he should be fully accepted and cared for by his aunt and uncle as a member of their household, and as a brother to W. The difference between brother and cousin on the facts of this case is readily understandable: what matters is the relationship between the two children. In our view it is not a major or negative distortion of family relationships in this case for cousins to grow up together as brothers.”

an adoption order. She did not refer to the sense of enhanced security an adoption would bring to C and to the grandparents: namely the assurance that his life with them was secure and permanent beyond the age of 18, nor to the fact that this would reflect the reality of C’s current and future life. The judge did not refer to the adverse impact on the grandparents of the mother’s past aggressive conduct towards them. She did not refer to the mother’s conduct towards the children’s guardian when she interviewed her in prison which left the guardian feeling intimidated and concerned about her own safety. She did not consider the potential future adverse impact on C or on the grandparents or their wider family resulting from the abusive, aggressive, and threatening conduct of the mother.

this year. The mother does not deny making the telephone call to her sister and whilst she does not accept everything set out in her sister’s statement, I am satisfied I can find and accept that the mother was abusive, aggressive and threatening towards her sister and the grandparents. If C was ever to be exposed to such conduct it would undoubtedly cause him very significant emotional and psychological harm.

C’s future life was securely and permanently with them in fact and in law;